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  • Delhi HC Basmati GI Decision (Pakistan vs India)

    Delhi High Court vide it’s judgement dated 28th November 2023, decided the suit filed by Trading Corporation of Pakistan Pvt Ltd (alongwith Rice Exporters of Pakistan and Basmati Growers Association) against Government of India seeking injunction against India approving “Super Basmati” rice, as evolved Basmati for the purpose of export as per its notification dated 24th May 2006.

    Basmati As Geographical Indication In India:

    The center of case being Plaintiff disputing India’s claim to “Basmati” rice. Historically the produce of “Basmati” crop can be traced to certain parts of India and in 2016 this variety of rice was granted registration as a geographical indication under registration no. 145 as per the provisions of the Indian Geographical Indications of Goods (Registration and Protection) Act 1999.

    What does grant of geographical indication granted to Basmati rice result in ? It puts restrictions, meaning that the crop can only be grown in the areas for which registration is sought. Thus giving priviledge to the farmers from specific geographical area in India. We can say that the quality and reputation of the product is associated with its geographical origin and other areas are prohibited from producing the same product.
    The production of basmsti rice registered under geographical indication and notified under section 5 of the Seeds Act (vide notification dated 15th February 2016) was restricted specifically to the states of Punjab, Haryana, Himachal Pradesh, Delhi, Uttarakhand, parts of western Uttar Pradesh and the state of Jammu and Kashmir.

    Decision of Delhi High Court:

    Proceedings in this case remained stalled due to non appearance of Plaintiffs since September 2020. Further the Advocates of the Plaintiffs sought discharge in the matter. Due to non appearance on behalf of plaintiffs and considering that the suit could not be prosecuted effectively since 2020 and in view of government of India’s stand the suit was dismissed for non prosecution

  • Maintainability Of Divisional Patent Application: Syngenta Limited v Controller of Patents and Designs

    Understanding the recent Delhi High Court decision in Syngenta Limited vs Controller of Patents and Designs, decided on 13th October 2023 in reference to section 16 of the Patents Act of 1970.

    Relevant Sections Concerning Division of Patent Application:

    As per the India patent law, one patent application can relate to only one invention or there should be a single inventive concept. While filing patent application , it is vital that the invention claimed passes the test of unity of invention . As per section 10(5) of the Patents Act 1970, the claim or claims of a complete specification of a patent application shall relate to a single invention or to a group of inventions linked to form a single inventive concept .
    Incase where a patent application embodies plurality of inventions, the practice is to divide the application in a way as laid down under section 16, which details the law on division of a patent application before the grant of patent and the power of Controller to make orders in respect of such division of application.

    Let’s glance at what Section 16 of the Patent Act 1970 says

    Section 16
    Power of Controller to make orders respecting division of application
    (1) A person who has made an application for a patent under this Act may, at any time before the grant of the patent, if he so desires, or with a view to remedy the objection raised by the Controller on the ground that the claims of the complete specification relate to more than one invention, file a further application in respect of an invention disclosed in the provisional or complete specification already filed in respect of the first mentioned application.
    (2). The further application under sub-section (1) shall be accompanied by a complete specification, but such complete specification shall not include any matter not in substance disclosed in the complete specification filed in pursuance of the first mentioned application.
    (3). The Controller may require such amendment of the complete specification filed in pursuance of either the original or the further application as may be necessary to ensure that neither of the said complete specifications includes a claim for any matter claimed in the other.
    Explanation.—For the purposes of this Act, the further application and the complete specification accompanying it shall be deemed to have been filed on the date on which the first mentioned application had been filed, and the further application shall be proceeded with as a substantive application and be examined when the request for examination is filed within the prescribed period.

    Questions of law :

    Questions with regards to section 16 was deliberated upon in a recent Delhi High Court decision in “Syngenta Limited vs Controller of Patents and Designs”, The first question stemmed from the fact that, general trend is in favour of filing for divisional patent application only with a view to remedy objections raised in examination report issued by Controller of Patents , when the objection is aimed at plurality of invention.
    The Court in this case opined on whether the requirement of a plurality of inventions being contained in the parent application, in order for a Divisional Application to be maintainable, apply even where the Divisional Application is filed by the applicant suo moto, and not on the basis of any objection raised by the Controller?

    Second question pertained to whether the basis of plurality of invention for filing a divisional application to be maintainable needs to be reflected specifically in the claims of the parent application or is it sufficient if the plurality of inventions is reflected in the disclosures in the complete specifications accompanying the claims in the parent application? In other words whether the plurality of invention should be restricted to claims of the original patent application or it can be inferred from what is embodied in the literature of the complete specification.

    The Appellant Syngenta’s original application for agrochemical concentrate comprising an adjuvant and hydrotope, was granted post examination. In the meantime a divisional application was also filed by it which was rejected on the ground that plurality of invention was not disclosed in the claims. Appellant contented that it was sufficient that plurality is inferred from the description of complete specification for filing a divisional application

    While deciding this case the correctness of earlier decision on this issue in Boehringer Ingelheim came into question, where the view as taken that

    … if any specification claims either a single invention or a group of invention linked to form a single inventive concept the requirement of “unity of invention” is satisfied…
    if there is no objection on the ground of plurality of distinct inventions‚ means the claims of the complete specification, contains either a single invention or a group of inventions linked so as to form a single inventive concept and in such a scenario, no divisional application is allowable    .

    What it declares is that if plurality of invention is not contained in the claims of specification, divisional application is not maintainable.

    The Verdict :

    The factors considered while resolving these issues include
    firstly, as per section 16(1) an applicant divisional application can be filed if plurality exists in provisional patent application or complete specification.
    Keeping in mind that it is not mandatory as per patent manual that provisional specification contain claims. It is filed primarily with an aim to claim priority date. Thus it can be inferred that if plurality of invention is to be assessed in provisional application, it may be from the literature of the description and not necessarily from claims.

    Also, on reading section 16, we can infer from subsection (1) that Applicant can file a divisional application either on its own motion or to remedy objections raised by the Controller.

    Analysing various judgments and legal provisions relied on by the parties to the dispute, the court overruled Boehringer Ingelhein decision and held that a Divisional Application moved in terms of Section 16 of the Act would be maintainable provided the plurality of inventions is disclosed in the provisional or complete specification that may have been filed. We are further of the considered opinion that Section 16 does not suggest or conceive of a distinction between the contingency of a Divisional Application when moved by the applicant of its own motion or where it comes to be made to remedy an objection raised by the Controller. In either of those situations, the plurality of inventions would have to be tested based upon the disclosures made in either the provisional or complete specification.

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  • Rights of an actor under Copyright law in India

    Actors don’t have copyright in their work. Their right is categorised under “performer’s rights”. The whole payment system for actors remain mostly unregulated in India. While the world grooves to oscar winner “Natu Natu” from India and more filmmakers from huge Indian entertainment industry show a desire for international recognition, when it comes to recognising a system of royalty income for the actors, Indian film and television industry has nothing in common to United States and has shied away from discussing this issue.

    Reformative changes brought in Indian Copyright Law, with respect to actors haven’t seen much of day light. While the top stars have a say in finalising the terms of contract on remuneration, profit sharing etc in a movie, the remaining chunk of actors have no say in the matter. In December 2021 actor Ravi Kishan made headlines by proposing Royalty income for actors in lok sabha. The Indian television industry often has voiced complaints against no regulation of working hours and payments on time, let alone the royalty system. Although the covid pandemic lockdown period also witnessed demand of royalty for reruns of programs on television.

    In general actors have no copyright in their performances, provided the contract states otherwise. The Supreme Court in 1979, in the famous copyright dispute involving actor Dev Anand (Fortune Films International v. Dev Anand [AIR 1979 Bom 17) gave the verdict against any right of an actor in the case of a film.

    Performers rights:

    “Performers rights” were introduced in India by the way of The Copyright (Amendment) Act 1994, an attempt at filling a lacunae in law by incorporating certain rights to “performers” which were not available earlier. Actor is included in the definition of “performer”. According to the definition of a “performer” under section 2(qq) of Indian Copyright Act, a “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. Provided that in a cinematograph film a person whose performance is casual or incidental in nature and in the normal course of the practice of the industry , is not acknowledged anywhere including the credits of the film shall not be treated as a performer

    International Treaty:

    If we look at international aspect of this law, 3 vital international treaties addressing performers rights have been,

    i) The Rome Convention of 1961
    ii) WIPO Performers and Phonograms Treaty 1996
    iii) Beijing Treaty on Audio Visual Performance 2012.

    In respect of the rights of actor, the 2012 Beijing Treaty is most important , as it deals with intellectual property rights of a performer in audiovisual performances,thus including the performances of actors in different media. This treaty came into force on April 28, 2020 updating the rights in view of the new digital era.

    The Preamble of this treaty states that it aims to develop and maintain the protection of the rights of performers in their audiovisual performances in a manner as effective and uniform as possible.

    Actors are granted economic as well as moral rights, moral rights include claim to be identified as the performer of his performances, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations

    Article 12 of Beijing Treaty lays that that once a performer has consented to fixation of his or her performance in an audiovisual fixation, the exclusive rights of authorization shall be owned or exercised by or transferred to the producer of such audiovisual fixation, subject to any contract to the contrary between the performer and the producer of the audiovisual fixation as determined by the national law.

    Further such consent or contract should be:

    a)in writing and
    b)signed by both parties to the contract or by their duly authorized representatives and

    most importantly independent of the transfer of exclusive rights described above, national laws or individual, collective or other agreements may provide the performer with the right to receive royalties or equitable remuneration for any use of the performance,

    The term of protection:

    The term of protection to be granted to performers under this Treaty is until the end of a period of 50 years computed from the end of the year in which the performance was fixed.

    The corresponding section under the Indian Copyright Act 1957 can be found in Section 38, 38A and 38B.

    Cinematograph is a collaborative effort, in which the producer, director, actor, musician and others contribute in the process of acheiving the final product i.e a film. In India, if an actor is not successful enough to demand terms and conditions in his/her favour, trend is to deny them the rights in their work specifically since no system exists for royalty income.

  • Unaffordable life Saving Drugs- The Compulsory License Saga

    The sole intent driving innovations in healthcare sector is to save lives…
    An assumption surely far-fetched and wishful, Pharma sector like every other business thrives on profit making. Yet in the face of deaths due to unaffordability of expensive life saving drugs, the irony exposes itself.

    A recent Kerala High Court case which was filed against high priced life saving breast cancer drugs Ribociclib manufactured by Novartis, Abemaciclib by Eli Lilly and Palbociclib by Pfizer, aptly conveys the distressing ground reality. A case in which the patient suffering from breast cancer sought relief to avail alternate affordable version of these medications, came to a tragic end for her as she lost her battle against the disease. With Petitioner succumbing to the disease, the court and media were forced to seriously take notice of the dire situation in India, where many lives are lost due to unaffordability of expensive life saving drugs.
    Yet again debate on the need of compulsory licensing of Patents has come alive, is it an only option to combat situations of malpractice due to patent protection and monopoly rights which are granted to inventions, specifically pharmaceuticals for the period of 20 years?

    Article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty and every citizen’s right to health is intrinsic to live a life with dignity .India being home to large number of patients who are extremely poor, it doesnt help when the fact remains that multinational companies import large percentage of medication here and the same are too expensive and beyond reach of the poor as well the middle income population of the nation, making affordability of healthcare a privilege rather than a necessity.

    Product Patent For Drugs Under Indian Patent Act of 1970:

    If we look back at newly independant india, in 1947 western multinational companies controlled the pharma sector and primarily imported drugs to india, with prices being among the highest when compared globally. The dire need of affordable medicines in a poor nation led to amendments in Indian Patent law and the first Patent law of independent India came in 1970. The Patents Act 1970 brought into force on 20 th April 1972, prohibited patents for new product innovations in the category of pharmaceuticals, chemicals and food. Patents were only granted in these field for new process and the protection granted was for a reduced period of 7 years. This regime ensured advancement of generic medicine industry and Indian citizen availed medicines at comparatively less cost.

    But a change in India’s Patent protection system was demanded with India signing WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) on 15th April 1994. Before TRIPS many countries had no patents for pharmaceutical products, which later became mandatory under TRIPS and accordingly being a signatory country India too extended Patent protection to pharma products and process by 2005.

    By Indian Patents (Amendment) Act, 1999 which came into force with retrospective effect from 1st January, 1995, filing of applications for patent in the field of drugs, medicines and agro-chemicals was introduced . These applications were kept pending in the mailbox to be opened on 1st January 2005. Provision of Exclusive Marketing Rights was brought in protecting pharmaceutical and agro-chemical manufacturers whose applications for product were in mailbox.

    The second phase of amendment was brought in by the Patents (Amendment) Act, 2002 by which term of patent was extended from 14 to 20 years.The third amendment to the Patents Act, 1970 came by The Patent (Amendment) Act, 2005 and with the third amendment India met with the international obligations under the TRIPS by removing Exclusive Marketing Rights and opening of mailbox to grant product patents.

    Compulsory License In India:

    Post TRIPS, with product and process patents being granted to medicines, it was also feared that instances of abuse of monopoly may arise resulting in unfair pricing of pharmaceutical products, hence to combat any such situations, TRIPS included measures such as compulsory licences and parallel imports. Compulsory license being the main tool against negative impact of Patents by which public interest could be protected.
    As per Article 31 of the TRIPS, Compulsory License can be issued by a Country to a third party for manufacturing and selling a patented product without the permission of Patentee in cases of national emergencies or situations of extreme urgency or for public non commercial use or as a measure against anti competitive practices. Under Article 31 before applying for compulsory license a prior unsuccessful attempt must have been made to obtain licence from the patentee on reasonable terms. Compulsory license also mandates paying royalty to the patentee by the Compulsory License holder.

    The end of 1990s witnessed a devastated South Africa with high AIDS infections and deaths, struggle against U.S and pharmaceuticals giants to avail life saving drugs at affordable price. Medicine Act 1997 was passed by South Africa with the aim of reducing price of medicine, which resulted in the U.S govt and 39 pharmaceuticals coming together in an act of threatening to take legal recourse against South Africa. It was a clear message against implementing the safeguard of compulsory license provided under TRIPS. Eventually with worldwide condemnation, the conflict was resolved resulting in backing of the Pharma group.

    On what grounds the Compulsory license can be granted in India?

    In India a patentee has to at regular intervals disclose the extent of working the invention to the Controller General of Patents. 3 years post the grant of a Patent if the Patentee has failed to meet the reasonable working requirements, the Indian Patent law has provisions for granting compulsory license.

    As per subsection 1 of section 84 of Indian Patent law, at any time after the expiration of three years from the date of the grant of a patent, any person interested may make an application to the Controller for grant of compulsory licence on patent on any of the following grounds, namely:-

    (a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or
    (b) that the patented invention is not available to the public at a reasonably affordable price, or
    (c) that the patented invention is not worked in the territory of India.

    The first Patent related Compulsory license in India post TRIPS era was granted to Natco against Bayer Corp’s kidney cancer medicine Nexavar by the Indian Patent Office (IPO) order dated 9th March 2012 after a high profile legal battle. Natco was to pay 6% royalty on the net sales every quarterly to Bayer, for selling the generic version of Nexavar, alongwith supplying free medicines to 600 needy persons each year.

    The Order against Bayer was based on following findings:

    (a) Since Bayer could provide only 2% of Patients with Nexavar, the reasonable requirements of the public with respect to the patented invention was not satisfied,

    (b) The cost came to about 2.8 lakhs per month for the medicine, being too expensive the patented invention was not available to the public at a reasonably affordable price,

    (c) The patented invention was not sufficiently worked in the territory of India as working of patent does not imply mere importation.

    Bayer appealed against the order but in vain, both Bombay High Court and later Supreme Court dismissed it’s appeal. United States considered this a dilution of its international patent regime and India had to face severe adverse reactions from the United States Pharma lobby and it’s government. News reports in U.S claimed India is on route to granting more drug related compulsory licenses in future and how it is going to negativity impact pharmaceuticals.
    With immense pressure on India, an alleged unofficial assurance of India against any future compulsory license was speculated to probably be the root cause behind no more compulsory licenses granted by the Indian Patent Office.

  • Trade Secrets And Their Protection In India

    Trade secrets refer to confidential information that provides a competitive advantage to a business. Trade secrets can include a wide range of information, such as formulas, processes, techniques, designs, customer lists and even recipes. One example of such trade secret is Google’s well keep secret algorithm of its search engine. Unlike intellectual property, trade secrets are not protected through registration with a government agency, since the same would require information to be in public domain and as the name suggests trade secrets are secret.
    In India legal action against theft or misuse of trade secret is primarily based on breach of confidence, which ineffect is a breach of contarct. The following discussion aids in understanding the various aspects of trade secret and it’s protection in India.

    According to Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), to qualify as a trade secret the information must be:
    a. Commercially valuable
    b. Be known to only limited group of people
    c. Be subject to reasonable steps taken by the righful holder of the information to keep it secret, including the use of confidentiality agreements for business partners and employees.

    Difference between intellectual property and trade secrets:

    While Intellectual property (IP) and trade secrets are both types of legal protections that are designed to safeguard the valuable assets of a business and share some similarities, there are some key differences between the two.
    Intellectual property refers to a broad category of legal rights that protect creations of the human intellect, such as inventions, literary and artistic works, and symbols, names and images used in commerce. Some of the most common types of intellectual property include patents, trademarks, copyrights, and trade secrets.

    Trade secrets, on the other hand protect confidential business information that provides a competitive advantage. This can include things like customer lists, marketing strategies, manufacturing processes, and other sensitive information that a company does not want to be disclosed to competitors or the public.
    One of the key differences between IP and trade secrets is that IP must be publicly disclosed in order to be protected. For example, in order to obtain a patent or trademark, an inventor or business must file an application with the relevant government agency that discloses the details of their invention or branding. Trade secrets, on the other hand, are protected by keeping the information confidential.

    Another key difference is that while IP protections are time-limited (e.g., patents expire after a certain number of years), trade secret protection can potentially last indefinitely, as long as the information remains confidential. Hence although intellectual property and trade secrets are both designed to protect valuable business assets, trade secrets protect confidential business information, and are enforced through different laws rather than registration.

    Steps for preventing theft of trade secrets:

    Protecting trade secrets is an important aspect of running a successful business and preventing theft is a major concern for enterprises. Theft of trade secrets is a serious crime and companies can take legal action to protect their trade secrets, and individuals found guilty of stealing trade secrets can face significant legal consequences.
    Here are some steps that companies can take to protect their trade secrets:

    Identify trade secrets: The first step in protecting trade secrets is to identify what information constitutes a trade secret. This can include information related to product development, marketing strategies, customer lists, and other confidential information. Once identified, the information should be classified and treated as confidential.

    Limit access and security measures: Limit access to trade secrets by providing access only to those who have a need to know the information. Technical security measures can include password protection, encryption, and firewalls to protect electronic trade secrets, also installing physical security measures is important which can include restricted access to areas where trade secrets are stored, locks and alarms, and security cameras.

    Agreements: Nondisclosure agreements (NDAs) and confidentiality clauses can be used to ensure that employees, contractors, and other third parties who have access to trade secrets are legally bound to keep the information confidential. A standard contract is not enough to cover confidential subject matter, or with access to sensitive information, it will need more specific clauses covering the potential threat.

    Governing Laws in India:

    Civil Suit for breach of contract:
    A breach of contract for trade secrets occurs when one party to a contract fails to uphold their obligations related to the protection and confidentiality of the trade secrets involved in the contract.
    To prevent a breach of contract for trade secrets, parties may include provisions in the contract that require the recipient of the trade secret information to keep it confidential and use it only for the purposes stated in the contract.
    They may also include provisions for the return or destruction of the trade secret information upon termination of the contract.
    If a breach of contract for trade secrets occurs, the injured party can take legal action to seek damages. This may include monetary compensation for any losses resulting from the breach, as well as injunctive relief to prevent further disclosure or use of the trade secret information.
    It’s important to note that the legal remedies available for a breach of contract for trade secrets may vary depending on the specific terms of the contract

    Delhi High Court in John Richard Brady And Ors. vs Chemical Process Equipments (AIR 1987 Delhi 372), while discussing the topic of enforcement of trade secret referred to what Patrick Hearn, in his book the Business of Industrial Licensing has opined under the heading Secrecy. It summarizes the circumstances of breach out of which legal proceedings may arise The said part is reproduced as under

    “Secrecy The maintenance of secrecy which plays such an important part in securing to the owner of an invention the-uninterrupted proprietorship of marketable know-how, which thus remains at least a form of property, is enforceable at law.

    That statement may now be examined in the light of established. rules making up the law of trade secrets. These rules may, according to the circumstances in any given case, either rest on the principles of equity, that is to say the application by the Court of the need for conscientiousness in the course of conduct, or by the common-law action for breach of: confidence which is in effect a breach of contract.

    In considering these alternatives there are three sets of circumstances out of which proceedings, may arise:

    (a) where an employee comes into possession of secret and confidential information in the normal course of his work, and either carelessly or deliberately passes that information to an unauthorised person;
    (b) where ah unauthorised person (such as a new employer) incites such an employee to provide him with such information as has been mentioned above; and
    (c) where, under a license for the use of know-how, a licensee is in breach of a condition, either expressed in an agreement or implied from conduct, to maintain secrecy in respect of such know-how and fails to do so.

    While Delhi High Court in Ritika Private Limited vs Biba Apparels Private Limited decided on 23 March, 2016, on legal recourse against violation of trade secret made it necessary for the plaintiff to first establish ownership of the trade secret. The opinion expressed in the said decision is under:

    So far as the issue of violation of trade secrets is concerned…If an injunction order is sought with respect to trade secrets then such specific trade secrets have to be mentioned and as to how those trade secrets are in the ownership of the plaintiff, and only thereafter the court can consider the grant of any injunction order on the basis of specified trade secrets and it cannot be that a general order can be passed that there is presumed to be a trade secret of the plaintiff and the defendant to be injuncted with respect to that unspecified trade secret which is not described in the plaint, and with respect to which thus no specific injunction order qua specific trade secret can be passed.

    Indian penal code
    Criminal breach of trust (section 405) and theft (section 378)

    Criminal breach of trust and trade secret theft are two distinct legal concepts, but they can sometimes be related.
    Criminal breach of trust refers to a situation in which a person, such as an employee or agent, is entrusted with someone else’s property or assets but then dishonestly misuses or misappropriates them for their own benefit. This can include money, securities, documents, or other valuable items. Criminal breach of trust is a criminal offense that is punishable by law.
    In some cases, criminal breach of trust and trade secret theft may overlap. For example, an employee who is entrusted with a company’s trade secrets may commit a criminal breach of trust by using those secrets for personal gain or disclosing them to unauthorized parties. In such cases, the person may face both criminal charges for breach of trust and charges for trade secret theft.

    Copyright Law And Trade Secrets

    Copyright law protects original works of authorship, such as literary, musical, and artistic works, as well as software and computer code, providing creators with an economic incentive to produce and distribute their works, while as we have discussed, trade secrets refer to confidential information and unlike copyright law, trade secret protection does not require registration and is not publicly disclosed.
    While copyright law and trade secret law are different, there can be some overlap between the two. For example, software can be protected both by copyright law and can involve element of trade secret. Thus in some cases, companies may choose to rely on both forms of protection.

    To summarize, the commercial value of trade secrets and vulnerability of being stolen, often by insiders , is a subject of concern for enterprises and though legal remedies can be availed against infringers, but when it comes to protecting trade secrets prevention is better than cure and calls for multifold steps that a business needs to take to protect the information.

  • Google: Indian Antitrust Ruling , All We Need To Know

    On 19th January 2023 the Indian Apex Court vide its decision in an Appeal filed by Google , refused to interfere with the National Company Law Appellate Tribunal’s (NCLAT) Order dated 4 January 2023.
    NCLAT refused to grant interim stay in Google’s Appeal arising from an order of the Competition Commission of India dated 20th October 2022, whereby the Competition Commission Of India (CCI) imposed a penalty of Rs 1337.76 crore on Google for abusing its dominant position in multiple markets in the Android Mobile device ecosystem. An additional penalty of Rs 936.44 crore was imposed on Google by CCIs order dated 25th October2022 for abusing its dominant position with respect to its Play Store policies.
    Supreme Court while declining to interfere with the order of the NCLAT, suggested the NCLAT to dispose of the appeal by 31 March 2023

    Case Against Google As Per CCIs Order Dated 20 October 2022

    The focus of investigation was various practices of Google while licensing its Android mobile operating system and various mobile APPS of Google, such as Play Store, Google Search, Google Chrome, YouTube, etc. to Android device manufacturers
    Google was held to have abused its Dominant Position In India, the markets of licensable OS for smart mobile devices, Market for app stores for Android smart mobile OS, Market for general web search services, Market for online video hosting platform (OVHP)

    Google while licensing its Android Operating System to equipment manufacturers also licenses its other APPs by entering into various Agreements such as

    a. Mobile Application Distribution Agreement (MADA)
    b. Antifragmentation Agreement (AFA),
    c. Android Compatibility Commitment Agreement (ACC),
    d. Revenue Sharing Agreement RSAs

    Mobile Application Distribution Agreement (MADA)
    MADA grants licence to Android equipment manufacturers for free distribution of Google’s proprietary apps referred to as Google Mobile Services or GMS (viz. Google Play Store, Gmail, Google Maps, Google Search, Google Chrome, YouTube, Google Play Services, etc.) to the end users within the specified territories.
    These apps of Google are offered in the form of a ‘bundle’, i.e., if the device manufacturer wishes to install even one app out of the GMS, it has to pre-load the full suite of apps on the devices. MADA also prescribes placement requirements of Google applications on the device’s panel/screen, with no option to uninstall

    MADA thus accorded significant competitive edge to Google’s search services over its competitors.
    Google also secured significant competitive edge over its competitors, in relation to its another revenue earning app i.e. YouTube in the Android devices. The competitors of these services could never avail the same level of market access which Google secured and embedded for itself through MADA. Network effects, coupled with status quo bias, create significant entry barriers for competitors of Google to enter or operate in the concerned markets

    Antifragmentation Agreement (AFA),
    Android Compatibility Commitment Agreement (ACC),
    Under the AFA/ ACC, the device manufacturers are inter alia restrained from manufacturing, distributing, or marketing devices based on Android forks (i.e., modified versions of AOSP code of Android which do not meet the requirements of CDD and CTS). Google licenses its apps only to those device manufacturerss who agree to requirements of AFA/ ACC and whose devices meet the Android compatibility tests.
    Google’s applications or GMS (viz. Google Play Store, Gmail, Google Maps, Google Search, Google Chrome, YouTube, Google Play Services, etc.) are not available on Android fork devices.
    Google’s reasoning is that the AFA is aimed to ensure that Android does not become fragmented.

    According to CCI ruling, this guaranteed that distribution channels for competing search services is altogether eliminated by prohibiting device manufacturers from offering devices based on Android forks. It ensured that device manufacturers are not able to develop and/ or offer devices based on forks, which are outside the control of Google.
    In the absence of these restrictions, the competing search services could have availed of sufficient distribution channels in partnership with device manufacturers, offering devices based on forks. Similarly, the android fork developers also could not find distribution channels for their fork OSs as almost all the device manufacturers were tied with Google.

    Revenue Sharing Agreement RSAs
    The RSA inter-alia provides for exclusive preinstallation of Google Search and Google Assistant in Android devices.
    The agreement forbids the device manufacturers from preloading or otherwise installation of any third-party application, bookmark, product, service, icon, launcher, third party hot-word in the qualified device that is an alternative service to Google Search and Google Assistant.
    Google shared search advertising revenues with device manufacturers , provided that the device did not pre-install any competing general search service on any device within the defined portfolio of smart devices.
    If a device manufacturers pre-installs such a service on any device, it loses the revenue share payments not only for that particular device but also for all the other devices in its portfolio on which another general search service may not have been pre-installed.
    This helped Google to secure exclusivity for its search services to the total exclusion of competitors.

    According to CCI, these agreements operate in tandem and the interplay between these agreements has manifested multiple anti-competitive outcomes in the markets, as detailed above.The combined results of these agreements guaranteed a continuous access to search queries of mobile users which helped not only in protecting the advertisement revenue but also to reap the network effects through continuous improvement of services, to the exclusion of competitors.
    With these agreements in place, the competitors never stood a chance to compete effectively with Google and ultimately these agreements resulted in foreclosing the market for them as well as eliminating choice for users.

    CCI concluded that:
    a. Mandatory pre-installation of entire GMS suite under MADA (with no option to un-install the same) and their prominent placement amounts to imposition of unfair condition on the device manufacturers and thereby in contravention of the provisions of Section 4(2)(a)(i) of the Competition Act.
    b. These obligations are in the nature of supplementary obligations imposed by Google on OEMs and thus, in contravention of Section 4(2)(d) of the Competition Act.
    c. Google has perpetuated its dominant position in the online search market resulting in denial of market access for competing search apps in contravention of Section 4(2)(c) of the Competition Act.
    d. Google has leveraged its dominant position in the app store market for Android OS to protect its position in online general search in contravention of Section 4(2)(e) of the Competition Act.
    e. Google has leveraged its dominant position in the app store market for Android OS to enter as well as protect its position in non-OS specific web browser market through Google Chrome App and thereby contravened the provisions of Section 4(2)(e) of the Competition Act.
    f. Google has leveraged its dominant position in the app store market for Android OS to enter as well as protect its position in Online Video Hosting Platform market through YouTube and thereby contravened provisions of Section 4(2)(e) of the Competition Act.
    g. Google, by making pre-installation of Google’s proprietary apps (particularly Google Play Store) conditional upon signing of AFA/ ACC for all android devices manufactured/ distributed/ marketed by device manufacturers, has reduced the ability and incentive of device manufacturers to develop and sell devices operating on alternative versions of Android i.e., Android forks and thereby limited technical or scientific development to the prejudice of the consumers, in violation of the provisions of Section 4(2)(b)(ii) of the Competition Act.

    Case Against Google As Per CCI Order dated 25th October 2022

    The Allegation:
    Google requires the App developers listed on Google Play Store to exclusively and mandatorily use the Google Play’s Billing System (GPBS) not only for receiving payments for Apps (and other digital products like audio, video, games) distributed/sold through the Google Play Store but also for certain in-app purchases i.e. purchases made by users of Apps after they have downloaded/purchased the App from the Play Store.
    If the app developers do not comply with Google’s demand of using GPBS, they are not permitted to list their apps on the Play Store and thus, would lose out the vast pool of potential customers in the form of Android users

    The question that CCI considered was whether making the use of Google Play’s billing system (GPBS), exclusive and mandatory by Google for App developers/owners for processing of payments for App and in-app purchases and charging 15-30% commission is violative of provisions of the Competition Act?
    Whether making access to the Play Store dependent on mandatory usage of GPBS for paid apps and in-app purchases is one sided and arbitrary and devoid of any legitimate business interest.
    The app developers are left bereft of the inherent choice to use payment processor of their liking from the open market.

    The Commission was of the view that:
    The conduct of Google constitutes an imposition of unfair condition on app developers, while Google follows discriminatory practices by not using GPBS for its own applications i.e., YouTube is not paying the service fee as being imposed on other apps covered in the GPBS requirements.
    Google’s restrictions for mandatorily using GPBS also have significant negative effect on the improvements and innovative solutions that third party payment processors / aggregators would be able to bring to the market.

    It takes away the incentives and ability that such payment aggregators would have to innovate in payment solutions by restricting their entry into this market.

    Mandatory imposition of GPBS also discourages app developers from developing its own in-app payment processor especially the free download apps that contain in app purchases in India.

    Google provides a truncated access to the app developers to the trove of data collected from the apps/ Play Store, while retaining full control over such data for monetization on commercial basis.
    These practices distort competition and disturb innovation incentives as well as ability of the app developers to undertake technical development and innovate in their respective sphere of business activities.

  • The Collegium Conundrum : All We Need To Know

    Post recent reports on displeasure expressed by Supreme Court alleging undue delay on the part of Central Government in clearing the appointment of Supreme Court Judges, came the news that centre has affirmed Collegium’s recommendations to appoint five new judges from different Highcourts to the Apex Court. While we witness the ongoing tussel concerning Collegium , here’s everything we need to know about the issue.

    Supreme Court’s Collegium System of recommending and appointing Judges in higher judiciary has faced many unfavorable reactions including the law minister and vice president commenting against it. The concept of Collegium is allien to the Indian Constitution, that remains the fact and the recommendation process is often accused of being secretive, opaque and indulging in favouritism. Let’s glance back and look at what led to the implementation of this system?

    The Beginning

    1973 witnessed controversial out of turn appointment by the government, Justice A N Ray was appointed Chief Justice of India (CJI), superseding three senior judges and then in 1977 Justice M H Beg was appointed CJI superseding Justice H R Khanna who was the senior most.
    The upheaval India faced in 1970s left non of the pillars of democracy unaffected. Emergency which spanned from June 25, 1975, to March 21, 1977, disturbed many equilibrium.
    With this backdrop, a circular dated 18th March 1981, was issued, by the then Union Law Minister, addressed to Governor and Chief Justices of all States, asking that Additional Judges consent to be transferred to any other High Court, the Additional Judges were asked to list their 3 choices for transfer. This step was looked upon as serious encroachment of Judiciary’s independence.

    Although the reason mentioned in the circular for such transfer? was caste and culture integration, but a contrary opinion to such reasoning arose, attributing the hidden motive behind the circular was to ensure recommendation for judges who were friendly to the then Prime Minister Mrs Indira Gandhi.

    Decisions That Paved Way For The Collegium

    The First Case: S.P. Gupta vs President Of India And Ors. decided on 30 December, 1981(AIR 1982 SC 149) also known as First Judges Case.

    The after effect of the Circular was a scenario of mistrust against the Centre, leading to a Writ Petition filed by Iqbal Chagla and others in the High Court of Bombay. The Petitioners in this Writ Petition were Advocates practising in the High Court of Bombay and they challenged the Circular. Thereafter a number of Writ Petitions before different High Courts of the Country were filed assailing the Circular’s Constitutional Validity.

    The Writ Petitions filed in different High Courts against the mentioned Circular were transferred to the Supreme Court under Article 139 of the Constitution on the ground that they raised issues of great Constitutional importance affecting the independence of the judiciary. A consolidated judgment addressing the issues of all the Writ Petitions was given in the judgment S.P. Gupta (Supra)

    At the center of the issue were Articles 124 (Appointment of Judges to Supreme Court) and 217 (Appointment of Judges to the High Courts)
    Supreme Court expressed concern that when it comes to appointment of judges of higher judiciary, according to Clause (2) of Article 124 and Clause (1) of Article 217 of Constitution, the actual power of appointment resided solely and exclusively in the Central Government and that the Chief Justice of the Supreme Court and High Courts have merely consultative role and that such consultations cannot be equated with concurrence.

    The judgment suggested a Collegium that would make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge, It added that the recommending authority should be more broad based and there should be consultation with wider interests. Implying that the main power of such recommendations and appointments should vest with the Judiciary itself,

    The Second Case: Supreme Court Advocates on Record vs Union of India decided on 6th October 1993, 1993) Supp 2 SCR 659

    This was the judgment by which a nine judge Constitution bench actually formulated and brought in the “Collegium System”.

    The judgment over-ruled majority view in S.P. Gupta (supra) which gave primacy to the Central Government in the matter of appointment of Judges to the superior courts. The judgment further declared that in appointing Judges to Supreme Court, the process of consultation and appointment under Article 124(2) shall consist of consultation between the Chief Justice of India, two senior-most Judges of the Supreme Court and the senior Supreme Court Judge who comes from the State and

    The Process of appointment of Judges to High Courts, under Article 217(1) to begin with the recommendation of the Chief Justice of the High Court. He must ascertain the views of the two senior-most Judges of the High Court and incorporate the same in his recommendation. The Chief Justice of India while examining the recommendation must take into account the views of two senior-most Judges of the Supreme Court and also the opinion of the senior Judge conversant with the affairs of the concerned High Court.

    While the First Judges Case S.P. Gupta (supra) recommended “consultation with wider interests”, the second case brought in a collegium system which meant recommendation made by CJI in consultation with two seniormost colleagues and that such recommendation should in general be accepted by the executive. In case of any objection the executive can ask the collegium to reconsider the recommendation, on reconsideration the decision of collegium will be final.

    This creation of Collegium System was far from what was envisaged in S P Gupta (supra) case and criticized for being a completely closed door process.

    Third Case : In Re Special Reference 1 of 1998

    The question in focus in this judgment was whether the size of the collegium that makes the recommendation should be increased? Supreme Court held that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court. Ordinarily, one of the four seniormost puisne Judges of the Supreme Court would succeed the Chief Justice of India, but if the situation should be such that the successor Chief Justice is not one of the four seniormost puisne Judges, he must invariably be made part of the collegium.

    The opinion of all members of the collegium in respect of each recommendation should be in writing. The ascertainment of the views of the seniormost Supreme Court Judges who hail from the High Courts from where the persons to be recommended come must also be in writing. These must be conveyed by the Chief Justice of India to the Government of India along with the recommendation.

    Fourth Case: Supreme Court Advocates on Record Association & Anr vs Union of India (2016) 5 SCC 1

    As criticism and questions built up against Collegium secretive recommendation process, in order to replace the collegium system , claiming a better transparent selection process, in 2014, legislature passed the National Judicial Appointments Commission Act after amending the Constitution (Ninety Ninth Amendment) Act 2014.
    National Judicial Appointments Commission(NJAC) was to be the recommending body for appointment of judges in higher Judiciary. NJAC would include Chief Justice of India, two other senior judges of Supreme Court, Union Minister of Law and Justice and two eminent persons nominated by a committee consisting of the Prime Minister , the Chief Justice of India and the Leader of the Opposition.

    Soon Petitions were filed in the Supreme Court challenging the validity of the Constitution (Ninety Ninth Amendment) Act 2014 alongwith NJAC Act. The efforts of government went futile. The matter was placed before Five Judge Constitution bench of Supreme Court and by a majority of 4:1 verdict the Supreme Court struck down the 99th Amendment to Constitution and the NJAC Act. The judgment declared the NJAC Act as unconstitutional, thereby again endorsing the validity of the Collegium System.

  • The Reformative And Changing Scenario Of Indian Abortion Laws

    In Focus:
    -Section 3 of the Medical Termination of Pregnancy (Amendment) Act 2021
    -Rule 3B of Medical Termination of Pregnancy (Amendment) Rules, 2021
    -2022 Supreme Court’s decision in “X vs The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr” Civil Appeal No 5802 of 2022
    -2023 Delhi High Court Guidelines issued in “Minor R Thr Mother H vs State NCT of Delhi & Anr” W.P.(Crl) 221/2023

    Termination of pregnancy in India is governed by the Medical Termination of Pregnancy Act 1971 (MTP Act). Prior to the enactment of the MTP Act , it was Indian Penal Code (IPC) that governed termination of Pregnancy. IPC criminalized termination of pregnancy, leading to situations where incase of unwanted pregnancy, illegal and unsafe means of abortion were resorted to leading to fatalities in many cases. MTP Act 1971 addressed this issue and legalized access to services of Registered Medical Practitioner for Medical Termination of Pregnancies under section 3.

    50 years later, in 2021, the MTP Act of 1971 was amended, with the aim at addressing the lacunas in the 1971 law that were not in consonance with changing societal norms. While MTP Act of 1971 stipulated a limitation of 20 weeks of gestational period for termination of pregnancy, the 2021 amendment in certain cases increased the window of abortion from 20 weeks to 24 weeks, thereby permitting the upper limit of termination of pregnancy to 24 weeks. Additionally the 2021 amendment sought to rectify a major drawback in the 1971 Act by including “all women” instead of only “married women” to seek relief under the Law.

    The relevant portion of Section 3 and Rule 3B post the amendment, are reproduced under:

    Section 3 –

    When pregnancies may be terminated by registered medical practitioners. —

    (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

    [(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,—

    (a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or

    (b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that—

    (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

    (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

    Explanation 1.—For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

    Explanation 2.—For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

    (2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

    (2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

    (2C) …
    (2D) …
    (a)…
    (b) …
    (c) …
    (d) …

    (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

    (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who having attained the age of eighteen years, is a [mentally ill person], shall be terminated except with the consent in writing of her guardian.]

    (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

    Rule 3B:

    Women eligible for termination of pregnancy up to twenty-four weeks.—

    The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:-

    (a) survivors of sexual assault or rape or incest;

    (b) minors;

    (c) change of marital status during the ongoing pregnancy (widowhood and divorce);

    (d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

    (e) mentally ill women including mental retardation;

    (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

    (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.” .

    Supreme Court in “X vs The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr” Civil Appeal No 5802 of 2022 :

    In the above decision dated 29th September 2022, the Apex court gave purposive interpretation to the law while deciding on the categories of women who can avail medical termination of pregnancy as per the MTP Act. The case involved relief sought under the MTP Act, nearing 24 weeks of pregnancy by an unmarried woman, with no means of income, abandoned by her partner, in mental agony of facing inevitable social stigma.

    Supreme Court came to the aid of the Appellant by allowing the termination of pregnancy in accordance with the procedure and precautions laid under the MTP Act. The primary question before the Supreme Court was whether Rule 3B includes unmarried women, single women, or women without a partner under its ambit. To answer it, Supreme Court applied a purposive interpretation to Rule 3B and further clarified that since a subordinate legislation must be reasonable and in consonance with the legislative policy, it should be interpreted in a meaningful manner, so as to give effect to the purpose and object of the MTP Act, the mischief at which the enactment is directed and the remedy which the lawmakers have devised to address the mischief.

    The MTP Amendment Act 2021 intended to extend the benefits of the statute to all women, including single and unmarried women by extending the upper limit for permissible termination of pregnancy from twenty weeks to twenty-four weeks. To corroborate one can look back at the legislative history of the MTP Act, including the speech of the Minister of Health and Family Welfare while introducing the Amendment Bill, which sheds light on the social context which necessitated the MTP Amendment Act 2021. While responding to the objections raised on the inclusion of a “woman and her partner” instead of a “married woman and her husband”, the Minister opined that in keeping abreast with the evolution of social norms, the failure of contraceptive must encompass access to abortion facilities to all women.
    This interpretation is further supported by Article 14 which requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14.

    The Court addressing the issue in reference to explanations appended to Section 3(2) of MTP Act concerning the circumstances that can qualify as risk of injuring the mental health of the woman, on the basis of which termination of pregnancy may be carried out, clarified that the expression “mental health” has a wide connotation and means much more than the absence of a mental impairment or a mental illness. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that while interpreting “grave injury to her physical or mental health”, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

    A change in material circumstance during the ongoing pregnancy may arise due to various reasons, such as when a married woman divorces her husband or when he dies or it may also result when a woman is abandoned by her family or her partner. It is also not unheard of for a woman to realise that she is pregnant only after the passage of twenty weeks. Women may undergo a sea change in their lives for reasons other than a separation with their partner. It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Each case must be tested with due regard to the unique facts and circumstances that a pregnant woman finds herself in.

    On the issues of right to reproductive autonomy and the right to dignity of a pregnant woman, the decision emphasized that in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health.
    Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well- being also injures the dignity of women.

    India having ratified the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women, the decision also took into consideration India’s obligations under International law,
    Article 51 of the Constitution requires the state to foster respect for international law and treaty obligations in the dealings of organised people with one another. Additionally, The Protection of Human Rights Act 1993 recognises and incorporates international conventions and treaties as part of Indian human rights law.

    Guidelines issued by HighCourt in “Minor through mother Vs State NCT of Delhi” W.P.Crl 221/2023:

    In this case, Petitioner a minor aged 14 years, sexually assaulted and raped, preferred a Writ Petition before the Delhi High Court through her mother under article 226 of constitution of india, praying for issuance of direction by virtue of Writ of mandamus to respondents to conduct Medical Termination of her pregnancy under MTP Act.

    In addition to granting relief to the minor, the Delhi High Court passed the following guidelines to be followed by the investigating officers, in cases where pregnancy exceeds 24 weeks, :

    i. At the time of medical examination of a victim of sexual assault, it will be mandatory to conduct a Urine Pregnancy Test, as in many cases, this Court has noticed that such test is not conducted.

    ii. Upon the victim being found pregnant due to sexual assault, and in case the victim is major gives her consent and expresses her desire for conducting medical termination of pregnancy, the concerned investigating officer will ensure that on the same day, the victim will be produced before such Medical Board envisaged under Section 3 of MTP Act, which this Court has been informed is constituted in following four hospitals in Delhi:

    (i) All India Institute of Medical Sciences (AIIMS), New Delhi,
    (ii) Dr. Ram Manohar Lohia Hospital, New Delhi,
    (iii) Safdarjung Hospital, New Delhi, and
    (iv) Lok Nayak Jai Prakash Narayan Hospital, New Delhi.

    iii. In case a minor victim of sexual assault is carrying pregnancy, upon the consent of her legal guardian and desire of such legal guardian for termination of pregnancy, the victim will be produced before such Board.

    iv. In case a minor victim is examined by such Board, appropriate report will be placed before concerned authorities, so that if an order is being sought regarding termination of pregnancy from the Courts, the Court concerned does not lose any more time and is in a position to pass an order on the same expeditiously.

    v. As per Section 3(2C) and 3(2D) of MTP Act, it is mandated that the State Government or Union Territory has to ensure that the Medical Boards are to be constituted in the hospitals. The Court is informed that such boards are not available in hospitals in each district, causing inconvenience to the Investigating Officers as well as to the victim at times who has to be taken for MTP and for further examination. Thus, State Government/Union Territory should ensure that such mandate of Section 3(2C) and 3(2D) of MTP Act, are complied with and such Boards are constituted in all Government Hospitals which have proper MTP Centres and it should be mandatory to have such Boards constituted before hand.

  • Difference Between Registering Industrial Design Under Design Law & Copyright Law In India

    Following Article discusses the laws under which Application to Register a Design can be filed.

    For the visual aspect of a Design to be protected, there are two options available under Indian Law. It can either be Registered under the Designs Act 2000 or the Copyright Act 1957. The Applicant for Registration needs to choose between the different kind of protection provided under both the laws, since once Registered under the Designs Act 2000, it cannot be protected under the Copyright Act. Protection under both the laws dont subsist simultaneously. What is the difference between both kinds of protection ? Let’s understand.

    Protection under the Designs Act 2000

    Under the Design Act 2000, the visual image of a Design, that which appeals to the eye , is the subject matter of protection . It is about what the products looks like and not its process of manufacture. If instead of design of a product, the Novelty lies is in the product itself or process to manufacture, the same cannot be Registered under the Design Act, instead protection can be availed under the Patents Act 1970.

    Definition of “design” as per section 2(d ) of the Design Act 2000 means:

    only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark or property mark under Indian Penal Code or any artistic work under Copyright Act,

    The essentials of a Design to get protection under Design Act can be summarized as:

    a. The protection is granted to the visual features of the end product

    b. The visual design can be two dimensional or three dimensional or in both forms

    c. The design needs to be applied to the article by industrial process

    Thus, the protection by way of monopoly rights under Design Act applies to only those designs that which are applicable to manufactured article. Monopoly provided to such design is confined to the design of the Article and not to the Article itself

    Section 4 of Designs Act details, what are not registrable and accordingly, to be Registered a Design must be,

    a. New and original

    b. Should not be disclosed to the public anywhere in the world prior to date of filing or priority date of the Application

    c. Should be significantly different from prior known designs

    d. Should not contain scandalous or obscene matter or be contrary to public order or morality.

    Is Registration of Design mandatory ? If Registered what is the duration of protection provided under the Design Act 2000 ?

    Section 11 of the Designs Act makes Registration mandatory to avail protection. The duration of protection is ten years from the date of Registration, which can be extended to five more years by making an Application in prescribed manner alongwith fees.

    Protection under the Copyright Act 1957

    What if a Design is not registered under the Designs Act,Is there an automatic protection under Copyright Act or registration under Copyright Act is mandatory?This question can be addressed by looking at two scenarios,

    Let’s first take a case where the Industrial Design is eligible for Registration under the Designs Act, but was not Registered, based on law as laid down under section 15 of the Copyright Act, in such a case copyright will automatically subsist under the Copyrights Act, but what is the timeframe of such a right? This is vital aspect, since in such cases the copyright ceases to exist after the design applied to the article by an industrial process is reproduced for fifty times.

    Section 15 :

    Special provision regarding Copyright in designs registered or capable of being registered under the Designs Act, 2000 (16 of 2000).—

    (1) Copyright shall not subsist under this Act in any design which is registered under the Designs Act, 2000 .

    (2) Copyright in any design, which is capable of being registered under the Designs Act, 2000 but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his licence, by any other person.

    Now let’s take a second scenario of those Industrial Designs which are not registrable under the Designs Act, in such cases the protection under Copyright Act does exist under the category of “Artistic work” but the work must qualify what is laid down under section 2(c) and must be an original work as laid down under section 13.

    Section 2(c) of the Copyright Act defines “Artistic Work” as under:

    “artistic work” means,—
    (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a
    photograph, whether or not any such work possesses artistic quality;
    (ii) a work of architecture; and
    (iii) any other work of artistic craftsmanship

    Next important question is, how important is getting the work Registered under the Copyright Act?

    Cases such as “Nav Sahitya Prakash v Anand Kumar AIR 1981 All 200” or the 2002 decision of Bombay Highcourt in “Asian Paints (I) Ltd. V Jaikishan Paints & Allied Products“ and many other decisions have ruled in favour of Registration being optional. Registration is not mandatory for enforcing copyright, copyright subsists as soon as the work is created, but Registration does provide to be a prima facie evidence in courts. Hence, although it is not obligatory for an author to get his work registered under the Copyright Act, it surely is advisable.

    To summarize the above discussion, it is clear that when the design is novel and created with the aim of applying it on an industrially produced article with commercial intent, Registration of such an Industrial Design falls under the Design Act.