June 17, 2011

Snippets: Microsoft V. i4i decision

25 USC 282 states that:
“[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.”

The much awaited decision of the US Supreme Court in microsoft v. i4i has come. The facts of the case were described by me in my previous post. SCOTUS in its 9-0 ruling has affirmed the Federal Court's judgment and microsoft has lost. Court held that under 35 USC 282 the standard for patent invalidity is still clear and convincing standard and not prepoderance of evidence. The majority judgment written by Justice Sotomayor is lucid. Court's decision is based on two major reasons. First, if the intention of the Congress was not to adopt a higher standard then it should have written so in the statute itself. The interpretation followed by different Federal Circuits was clear to Congress, yet it never changed the law, hence Congress by its acquiescence agreed with the courts' interpretation. 

Second reason is very interesting. Court says that by enacting section 282 Congress codified the existing common law relating to patents' invalidity. It is so because, when a patent is challenged it is also a parallel attack on the USPTO, a government agency. Therefore, the standard must be higher. Also the common law meaning of the terms "presumed valid" and "..lies on one who challenges the patent" is that the standard of proof has to be higher than preponderance of probabilities.



June 13, 2011

Free Pass to Advocates to practice any where in India.

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From June 15th, 2011, lawyers can practice in any courts,tribunals across country(India), irrespective of their enrollment in any bar council.By the new law, they do not need to transfer license to their desired states.

After 50 years of the enactment of the Act (Advocates Act) , the center has notified the same under section 30 off the Advocates Act, 1961.Section 30 of the Act states: Subject to the provisions of the Act,every advocate whose name is entered in the state roll shall be entitled to practice throughout the territories to which this Act extends--In all Courts, including The Supreme Court.

The Advocates are authorized to practice before any  tribunal,Court or before any authority or person before whom such Advocate is by or under any law for the time being in force entitled to practice. They are also authorized to take evidence in the same manner.

This action of center has meet long pending demands of the Advocates.


                                                         Happy Advocating!!!!!!! 

June 7, 2011

Sexual Harassment in work place in India & its Recourse


This image is taken from Here
Sexual harassment in India is termed and described as: unwelcome sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks; physical contact and advances; showing pornography; a demand or request for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature. In its decision in Vishaka v State of Rajasthan (1997) the apex court determined that sexual harassment is not confined to instances of rape or assault.

Although there is no specific law against sexual harassment at workplace in India but many provisions in Constitution & other legislations protect against sexual harassment at workplace.
                    # According to India's constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 of the Constitution of India.
               # Infringes Article 21 of the Constitution, as it is against her right to life and live with dignity.
              # Section 354, IPC deals with “assault or criminal force to a woman with the intent to outrage her modesty.
              # Section 509, IPC deals with “word, gesture or act intended to insult the modesty of a woman.
             # Section 294, IPC  deals with (a) does any obscene act in any public place, or (b) sings, recites and utters any obscene songs, ballads or words, in or near any public space.
             # In case of private companies, Industrial Employment (Standing Orders) Act, 1946. 
                 # Indecent Representation of Women (Prohibition) Act (1987)
             # Civil case: A civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.

Accordingly, the principles laid down for constitution of the Sexual Harassment Committee, are, interalia, as follows:
  • It should be headed by a Woman;
  • At least half of its members should be Women;
  • Further, to prevent the possibility of any undue pressure or influence from senior levels, such Sexual Harassment Committee should involve a third party, either an NGO or other body who is familiar with the issue of sexual harassment.
  • Typically, the Committee may consist of 5 members, (ideally an odd number is recommended) to ensure the final decision is not split.

The above said principles, avoids any undue influence or pressure from the employer, I.e. who is involved in the said act. As the committee is to be headed by a women and involvement of third party, such as NGOs or other body who is familiar with the issue of sexual harassment provides an advantage to complainant.

Protection of Women against Sexual Harassment at Workplace Bill, 2010:
Women employees in India can now sue their colleagues for sexual abuse and harassment after the Union Cabinet on Thursday finally approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in Parliament.

Women employees in India can now sue their colleagues for sexual abuse and harassment after the Union Cabinet on Thursday finally approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in Parliament.

Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.
There are few case laws, where Honorable Courts has taken the recourse on the employer for their action taken on the complainant in case of sexual harassment:

In N Radhabai vs. D. Ramchandran, (AIR 1995 SC 1476,) When Radhabai, secretary to D. Ramchandran, then social minister for state, protested against his abuse of girls in welfare institutions, he attempted to molest her and dismissed her in 1992. The Supreme Court in 1995 passed the judgement in her favour, with pay and perks from the date of dismissal. 

In Shehnaz Mudbhatkal vs Saudi Arabian Airlines: Shehnaz was subjected to sexual harassment by her boss in 1985, and dismissed when she complained to higher authorities. She won her case in 1996 when the Bombay labour court judged it to have been a case of unfair dismissal under the Industrial Disputes Act. It ordered her re-instatement with full back payment, perks and promotions.
This image is taken from Here

Vishaka Guidelines:
The Vishakha guidelines lays down certain preventive steps that an employer or responsible persons within the organisation should keep in mind in order to prevent women from sexual harassment at workplace. They can be summarized as follows:
(a) Express prohibition of sexual harassment as defined (in this decision) at the workplace should be notified, published and circulated in appropriate ways.
b) The rules/regulations of Government and public sector bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
d) Appropriate work conditions should be provided in respect of work, leisure, health and
hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.”
Complaints mechanism- an appropriate complaints mechanism should be created in the
employer’s organization for redress of the complaint made by the victim. Such complaint
mechanism should ensure time-bound treatment of complaints.
Complaints Committee- The complaints mechanism should be adequate to provide, where necessary, a complaints committee, a special counsellor or other support service, including the maintenance of confidentiality.
In Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 the Hon'ble Supreme Court held that sexual harassment cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the delinquent officer is wholly misplaced and mercy has no relevance. Any lenient action in such a case is bound to have a demoralising effect on working women.

The aim of Vishaka case was to ensure a fair, secure and comfortable work environment, and completely eliminate possibilities where the protector could abuse his trust, and turn predator, or the protector-employee would insensitively turn a blind eye.

But, in many cases victims couldn’t prove their point due to lack of evidences; culprits of the act are not punished because of this and enjoy a normal life, even after committing the crime. This refrains a victim to complain, she gradually succumb to the crime. In the opinion of the author, Surveillance cameras should be set up in the office and working places for all should be there should be no rooms for this kind of heinous act.  

June 5, 2011

No Interference of media report in probe: SC

Media report cannot interfere with the investigation matters.The Supreme Court on 8th 2010 August virtually slapped a ban on source-based news stories in matters under investigation, in an order which can alter the landscape of media coverage. The provocation for the order, already being seen as a gag order, was violation of the apex court’s two year old ruling asking newspapers and TV channels to exercise restraint in reporting the Aarushi murder probe.

The implications of the order go far beyond the unresolved, sensational murder of the Noida teenager, with the Apex ordering that no news story relating to any probe, not only to the Aarushi murder case but all cases, could be published if it had potential to interfere with the probe, tarnish the image of persons or prejudicially affect the accused in trial.

The order will crimp media’s maneuver space in the country where everything is reflexively tagged “classified and top secret” and where governments have used the culture of secrecy to cover their misdeeds. Media has tried to overcome the obstacle with the help of “sources” who, often at great risk to themselves, have helped expose wrongdoings which would have never seen the light of day.

It is only with the help of sources, who are forbidden from speaking to media, that newspapers and TV channels have been able to bring out details of investigation into corruption cases, even acts of terror. This order could also make it difficult to share with readers source-based information relating to scandals, like the one involving Commonwealth Games, in which several top functionaries have come under the scanner after media, acting in concert with "sources", have brought out irregularities.

The proceedings took place in a PIL filed by advocate Surat Singh, who had first moved the court in 2008 seeking some restraint in reporting in the wake of "wild allegations" levelled by Noida police, which first investigated the Aarushi murder case.

The Bench comprising Justices Altamas Kabir and A K Patnaik passed the order after the counsel for the parents of Aarushi pointed out to news reports and repeated telecasts casting aspersion on the character of everyone -- the victim, Talwars and their deceased servant.

Senior advocate Pinaki Mishra said the Talwars had cooperated in every kind of investigation, from narco-test to repeated questioning, yet the CBI kept leaking information that found its way into newspapers and TV channels in a much sensationalised manner. "It is virtually a trial by a voyeuristic media presenting an incident in an extremely malicious manner," he said.  

While questioning the CBI -- "who are these anonymous sources dishing out information to the press" -- the apex court also mulled whether it would be proper to gag the press as sought by the Talwars' counsel. It said, "Nobody wants to gag the press but someone can surely gag an irresponsible press. Have some restraint while reporting about a 14-year-old dead girl. Respect her honour."

While asking for all guidelines relating to media from Press Council of India, National Broadcasters Association and ministry of information and broadcasting, the Bench went on to pass a virtual gag order on reporting solely based on sources and which had the potential to interfere with the probe, tarnish the image of a person or prejudicially affect the accused.

"In the meantime, we not only reiterate our interim order of July 22, 2008, but also restrain the respondents from publishing material which has potential to interfere with the process of investigation of all cases," it said.

To leave no ambiguity, it clarified, "We, however clarify that this would not prohibit publication of information which will not interfere with investigation, damage reputation or prejudice the accused."

The Bench said, "The press is important in a democracy. But it must observe self-restraint. When it fails to self-regulate, what can be done. No one says do not report. But do it in a manner so that none of the parties' reputation is tarnished. What is involved here is a young girl's reputation. Have some sensibility while reporting."

June 4, 2011

© Copyright of Television serials

Television serials are protected under Copyright Act, 1957 as a ‘cinematographic work’. 

* S 13 (1) of the Copyright Act, 1957 states that Copyright subsists in cinematograph films.  
‘Cinematograph film’ means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and ‘Cinematograph’ shall be construed as including any work produced by any process analogous to cinematograph including video films”.

* According to S.  2 (d) (v), the author of the cinematograph film is the producer. Copyright in cinematograph film:

* Under S. 14 (d), the author of a cinematograph film in which the copyright subsists has the following exclusive rights:
(i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public;
(e) In the case of sound recording, -
(i) to make any other sound recording embodying it; (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the sound recording to the public.
This image is taken from Here

Television serials are in demand these days. Let it be saas-bahu types, comedy or reality show, everything on television is getting popular these days. Bollywood stars are even jumping into small screen projects, as it gives them more popularity, and eventually this channels gets boast of it. Everyone is in the race of acquiring name, money, fame, popularity. Why any channel will lag behind in competition…? If any show is popular is in one channel, others try to imitate the same, just by changing the song & cast of the programme. This kind of action by television channels (producers) may land them up in trouble as it contains copyrighted work. Producers tend to take action which will increase their TRPs, but they forget that these TRPs will be of no use, when they will be in trouble. They must under that these are protected under copyright and they should understand the norms and conditions of it and shouldn’t violate it.

Copyright protection is available only to cinematograph film including the sound track. The cine artists who act in the film are not protected by copyright law for their acting.

Divided Infringement

On April 20, 2011, the U.S. Court of Appeals for the Federal Circuit granted a petition for rehearing en banc in Akamai Technologies., Inc. v. Limelight Networks, Inc., No. 2009-1372, -1380 , -1416, -1417, 2011 U.S. App. LEXIS 8167, at *2 (Fed. Cir. Apr. 20, 2011) to address the question:

If separate entities each perform separate steps of a method claim, under what circumstances would that claim be directly infringed and to what extent would each of the parties be liable?

Akamai is one of several recent cases by the Federal Circuit requiring that all joint infringers be under the "direction or control" of a single entity in order to find direct infringement of a method claim.

Akamai is one of several recent cases by the Federal Circuit requiring that all joint infringers be under the "direction or control" of a single entity in order to find direct infringement of a method claim.

On May 26, 2011, the U.S. Court of Appeals for the Federal Circuit signalled its intention to reevaluate the state of the law regarding divided infringement when it agreed to hear McKesson Technologies Inc. v. Epic Systems Corp. en banc on an expedited schedule in view of the pending en banc review of Akamai Technologies., Inc. v. Limelight Networks, Inc., another divided infringement case. The Federal Circuit in McKesson will address the following questions:

1. If separate entities each perform separate steps of a method claim, under what circumstances, if any, would either entity or any third party be liable for inducing infringement or for contributory infringement? See Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565 (Fed. Cir. 1983).

2. Does the nature of the relationship between the relevant actors—e.g., service provider/user; doctor/patient—affect the question of direct or indirect infringement liability?

See McKesson Technologies Inc. v. Epic Systems Corp., No. 2010-1291, Order (Fed. Cir. May 26, 2011).

Before agreeing to hear McKesson en banc, a divided panel of the Federal Circuit, in McKesson Technologies Inc. v. Epic Systems Corp., No. 2010-1291, 2011 U.S. App. LEXIS 7531, at *13-15 (Fed. Cir. Apr. 12, 2011), questioned the correctness of the "single infringer" rule and requirement of "direction or control" in joint infringement actions.

By taking multiple cases, the Federal Court is likely to be presented with multiplicity of perspectives on this emerging issue.

June 3, 2011

Coastal Regulation Zone (CRZ) & Sustainable development


This image is taken from Here
The Coastal Regulation Zone (CRZ) was instituted on the 19th February 1991, by the Ministry of Environment and Forests (MoEF), with the aim of protecting, India’s greatest asset, its 7500-km-long coastline from unregulated development and adverse environmental impact.
However, with the latest amendment of the CRZ 2011, the MoEF has discernibly taken the middle path only to the bewilderment of both the environmentalists and developers.


Analysis of CRZ2011:


CRZ is the area within 500 meters from the High Tide Line (“HTL”) on the landward side along the sea front, and the area within 100 meters along each side of tidal influenced water bodies like estuaries and river mouths, etc.  

This image is taken from Here
Following are the key changes implemented in CRZ2011:


1.      CRZ – I : [covers highly sensitive ecological and the geomorphologic features which play a role in the maintaining of the integrity of the coast areas]
a.       Construction of trans-harbor sea link without affecting the tidal flow of water, between LTL and HTL.
2.   CRZ – II: [(urban areas) are the areas that are developed up to or close to the shoreline and falling within the municipal limits]
a.       Slum rehabilitation and redevelopment, which has to be carried out through an entity where the state government or its instrumentalities hold no less than 51% stake.
b.      Redevelopment of old buildings, by providing suitable accommodation to the original tenants. 
c.       Additional FSI, whether under slum rehabilitation or redevelopment, the floor space index (FSI) or the floor area ratio (FAR) shall be in accordance with the town and country planning regulations.
3.   CRZ – III : [(rural areas) are the areas that are relatively undisturbed and those do not belong to either CRZ-I or II which include coastal zone in the rural areas (developed and undeveloped) and also areas within municipal limits or in other legally designated urban areas, which are not substantially built up
a.       No Development Zone (NDZ) which is an area up to 200mts from HTL on the landward side in case of seafront and 100mts along tidal influenced water bodies or width of the water body whichever is less is to be earmarked as NDZ, where no development shall be permissible.
b.      Hotels in CRZ – III, development of vacant plot in designated areas for construction of hotels or beach resorts for tourists or visitors is permitted subject to specified conditions and prior approval of MoEF.

2.      Miscellaneous:

a.       Streamlined and time-bound approval process, a specific procedure provided in CRZ 2011 for obtaining clearances and also provides for an enforcement mechanism which was missing earlier.
b.      Enhanced transparency, all redevelopment projects shall be subjected to the Right to Information Act, 2005 (“RTI”) in terms whereof any and all information of the project shall be accessible by public.

The CZR2011 seeks to achieve one of its core objectives to promote development in a sustainable manner based on scientific principles, taking into account the dangers of natural hazards in the coastal areas by keeping in mind the responsibility towards various communities and ecological areas dotted throughout the coastal territories of India.


CRZ2011 has come up with structured steps to ensure that coastal developments do not damage the environment and provide sufficient insulation from calamities such as cyclones and tsunamis.

June 2, 2011

Whitmill v. Warner Bros.





Warner Bros. is being sued by the author of Mike Tyson’s tattoo S. Victor Whitmill
– can an artistic work depicted on person’s face be copyrighted?
Mike Tyson’s fancy face-tattoo artist, S. Victor Whitmill, filed a copyright lawsuit against Warner Bros. for its use of his “art” on one of the lead characters in The Hangover II on the revered "STU" played by ED Helms. Whitmill doesn’t only want lots of dough from Warner Bros.; he also wants the court to grant an injunction, preventing the movie’s release to over 3600 theaters on 7000 screens over Memorial Day weekend.
Whitmill permanently affixed the “tribal tattoo” on a “3-D object” (aka the side of Tyson’s face) in 2003, but he didn’t file for copyright protection until April of 2011, just days before filing the federal lawsuit against WB. Obviously, the filing isn’t required immediately upon creation of the object; however, in order to make a legal claim of a copyright violation, a filing must accompany the lawsuit. The question here is whether the nature of the medium in which an artistic work is fixed is relevant for acquisition of copyrights in that work, the fixation of work being the upper left side of Mike Tyson’s face, being the tangible medium of expression.
Other important facts include -
1. Whitmill’s very-recent filing and other behavior is certainly evidence that he previously didn’t have a problem with the tattoo’s use by others. The Hangover was released in 2009 and Whitmill didn’t complain. He didn’t complain when Tyson applied for trademark protection of the tattoo in January of 2011. He didn’t complain after Tyson appeared in two other movies — Mike vs. Tyson: The Battle Rages On (2004), or Tyson(2009), a documentary about the boxer’s life. Both movies’ advertising material display Tyson’s tatted face.he advertising material is a picture of Tyson with the tat. Whitmill didn't complain when a Mike Tyson doll was created with the tattoo on its face. He didn't complain when a mobile "app" was released that includes Tyson's tattoo.
2. The unusual part against Whitmill is he didn’t complain when teen heartthrob Justin Bieber sported the artistic creation! Remember, there are two parts to this case: whether the judge prevents WB from releasing the movie, and then whether there was an underlying copyright violation.
There is absolutely no way the judge is going to stop Hangover II from its release. Not only does the judge surely want to see the sequel to one of the most hilariously inappropriate movies of all time, but Warner Bros will suffer irreparable harm if the movie isn’t released.
I most conceitedly look forward to the Hangover II ..!


No Legal Considerations for Social Networking Users

This image is taken from Here
This era is of social networking. Social networking is growing day by day attracting from young children to elderly people. It has become more user-friendly by allowing users to post their personal information, photos, videos and other information. This uploading and downloading via internet has increased many manifolds raising copyright issue.  Social networking users don't enjoy any of the immunities granted to social networking sites under the law, so they should be careful to always act appropriately when posting messages or files to the sites. The main areas where users can get themselves into trouble are through the posting of defamatory content or content that infringes on intellectual property rights (copyright, trademark).
Users can be held liable for violation of copyright, defamation/liable (if posted against person/group/communities. As no statutory immunities exist to shield users, the standard laws pertaining to defamation and infringement apply. The user will be held liable, even if the site can escape liability. If a user posts material that infringes on another's copyright, the user will face liability for the infringement.  
This image is taken from Here
Users must also keep in mind that all social networking sites are asking for verifying age. Providing wrong age and other details also may land users up in trouble. Any fraud or circumvention of these requirements could have repercussions for social networking users in addition to the usual charges of defamation and infringement.
Users always should remember that posting of allegedly defamatory, threatening or indecent messages posted on social networking sites may land them up in trouble.
Think before you Post!!!!