November 8, 2011

Philosophy of Immanuel Kant

In his book “Critique of Pure Reason, (1781)which is considered as one of the most influential works of philosophy, Immanuel Kant criticized the utilitarian theory
Utilitarianism which was first proposed by Jeremy Bentham advocates for rules which gives maximum pleasure to maximum number of people in the society. The basis of this theory is that each act of man is based on or results in either pain or pleasure. Humans have a tendency to work for pleasure and avoid pain. Therefore, the “good” law would be the one that would create maximum pleasure for maximum number of the people. For example, a criminal must be sent to jail because it would give a certain “kind” of pleasure to the society. 

The basis of Kant’s rejection of utilitarianism is that humans are rational beings capable of reasoning. This is what sets them apart from mere inanimate things. Kant advocates that each individual irrespective of his societal status possesses an inherent dignity which has an intrinsic value. Therefore, humans should not used as a means to achieve an end. Kant advocated the libertarian concept of individual freedom. But his conception of freedom is different from others. 

According to Kant, freedom is opposite to necessity. For example, if someone goes to restaurant to eat something then according to Kant’s notion of freedom, he is not ordering food according to his freedom because his hunger is the cause which necessitated him to go to restaurant. To act freely is not to choose a best means for an end. To act freely is to act for the sake of end itself. Accordingly, Kant proposes freedom as autonomy which means to act according to your own will. In autonomy, a Law is not imposed on an individual; rather the individual imposes a Law upon himself.

Kant proposes a very stringent standard of morality. Each act has its own moral worth which should be independently judged from the consequence that it produces. This is against the theory of consequential morality which advocates that the morality of an act depends on the consequence that it produces. Therefore, according to Kant, fundamental rights are not morally good because their observance leads to a ordered and peaceful society rather they are morally good because of the reason that each individual possess an inherent dignity and hence he must possess certain fundamental rights. 

Taking another example, deception is not morally bad because in the long run it may harm, but because in deception, one uses the other person as a means to achieve an end and humans should not be used as a means. Notions like duty, inclination, sympathy and altruism are acceptable reasons behind acts, which give acts their moral worth.

The contribution of Immanuel Kant has been great in the way that he advocated the dignity of each human being. Philosophers like John Rawls were influenced by what came to be known as “Kantianism”. John Rawls in his famous Theory of Justice states that a liberal democracy and its institutions must take care of all the people including the people belonging to the lowest strata of the society. 

His principle of inviolability of each person’s dignity is very similar to the Kant’s theory. Another area which in my view supports Kantian notion is the area of human rights. The theory of human rights developed post World War II emphasizes that human rights are rights which an individual possesses because of the reason that he is human. Here also we see that the intrinsic worth of human dignity is respected.
Please write your comments and suggestions.
( For a lucid account of Kant’s philosophy, see http://www.justiceharvard.org/2011/02/episode-06/#watch)

November 6, 2011

Pre-Grant opposition: An opposition of a different kind

I was reading section 25(1) of the Patent Act 1970; and i found some confusion in relation to pre-grant opposition. 

Section 25(1) read as :At any time within four months from the date of advertisement of the acceptance of a complete specification under this Act (or within such further period not exceeding one month in the aggregate as the Controller may allow on application made to him in the prescribed manner before the expiry of the four months aforesaid) any person interested may give notice to the Controller of opposition to the grant of the patent  on the grounds:
1.If the invention (in full or part) is wrongly obtained.
2.Claim has been published before priority date claimed.
3.Claim has been claimed in other patent.
4.Claim of the complete specification was publicly known or publicly used in India before the priority date of that claim.
5.Any claim of the complete specification is obvious and clearly does not involve any inventive step.
6.Any claim of the complete specification is not an invention
7.Complete specification does not sufficiently and clearly describe the invention
8.Failed to disclose information required by the controller.

As the Patent act or Patent rules doesn't describe regarding fees and forms of filing pre-grant opposition, it has given rise to few doubts in my mind.
1.As this pre-grant opposition is filed at the application stage, whether the party who is opposing to the application, should be considered as a necessary party as compared to post grant and revocation proceedings? 

As this has been not clearly stated in Act and rules about the pre-grant proceedings, i would like to go with the answer. NO. (the party who is opposing the application is not the necessary party). i,e it is not inter-party in nature of opposition.
Reasons:
1. As this in pre grant stage, revelation of document might cause damage or might hamper the credibility of the patent.If the party is considered as a party to proceedings, then he is entitled to see all the documents in relation to the pertaining application of patent. and if such documents are produced (it might constitute an prior art). 
2. There is no fees and forms prescribed for pre-grant opposition. 
3.Appearing and hearing is not compulsory, though he can provide an application for it, but it is upon the discretion of controller to allow such application.  If it deals with the matter of utmost importance, which if falls
in public domain, might loosen the stand of patent, controller can deny such application.
4. As stated inn section 15 of the Act states that power of controller to revoke and amend an application may be exercised even without a pre grant opposition.
5. The role of opponent is merely to  provide the grounds of opposition and material to support the grounds.
6.If the controller is satisfied with the materials opposing the application,then he can allow pre-grant opposition, on contrary if filed for post-grant or revocation,it is not upon the satisfaction of controller to accept or reject the same.He is bound to take up the application and start the proceedings.
7.In pre-grant opposition, cost is not allowed to the person who oppose the application, on contrary cost is allowed in post grant & revocation proceedings.i,e opponent can proceed with the case irrespective of the merit of notice of opposition. but the case is not same with pre-grant opposition.
8.Patent Act and Rules are silent about whether the defence of the applicant should be disclosed to the opponent.(If not disclosed to the party, as it would amount to violation of natural justice and may invoke writ jurisdiction), (if supplied, would form a prior art and as well as affect application).

Considering the above points, i am with the opinion that pre-grant opposition is not an inter-parte opposition, where the party who is opposing the application is not a necessary party, but he mere acts as an facilitator to oppose the application.This opposition is between Controller and the applicant of the patent.

Readers re free to provide their comments and opinions!!



November 5, 2011

Difference between Indian & US Patent System


Provision related to the patentable subject matter in US Patent Act is illustrative in nature in the sense that it defines what is patentable in US. While, on the other hand, Indian Patents Act defines what is not patentable subject matter.
US patent act allows a discovery of process, machine, manufacture or composition of matter to be patented if it satisfies the criteria of novelty, utility and non-obviousness. While under Indian Patent Act, the mere discovery of a new and useful process or product is not patentable.
US Patent Act does not speak specifically about patentability of computer programs, while under Indian Patent Act, computer programs per se are not patentable.
Indian patent system works on “first to file” scheme while US works on “first to invent” scheme. Though this has been changed by America Invents Act, 2011. Patents filed after March 16, 2013 will be granted on a first to file basis.
In US only post grant opposition to the patent is allowed while in India both pre grant and post grant opposition are allowed.
US patent laws allow the grant of patent to anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. Indian Patent Laws does not allow new and useful process or product by mere discovery to be patented.
Interference proceedings in US Patent system considering the inventor ship issues. No interference proceedings in Indian patent system.
Plant are patentable in us where as plant are not patentable in India.
Business methods are not patentable in India whereas they are patentable in US
Patent agent of other countries (Canadian patent agent) also can practice as US patent agent. But this is not possible in India, where a patent agent must have Indian nationality.
Patent Term adjustment is there in US , while there is no provision for patent erm adjustment in India.

November 2, 2011

Filing of a patent in affordable cost


Filing of Patent

Filled by Natural person: Rs.1000/- 
If filed by ‘Other than natural person’ may include a legal entity; it may also include a legal entity and a natural person jointly, then: Rs.4000/-

Specification and Claims

Specification up to 30 pages : Free
Specification exceeding 30 pages, for natural person: Rs.100/- per page
Specification exceeding 30 pages, for other person: Rs.400/ per page 
Claims up to 10: Free
Claims exceeding 10, for natural person: Rs.200/- per claim
Claims exceeding 10, for other person: Rs.800/- per claim

Publication

All patent applications filed are published in the Patent Office Journal after 18 months from date of filing .But, there can be a early publication filed in Form 9.
Early publication for Natural person:  Rs.2500/-
Early publication for other person: Rs.10,000/-

Examination

Must be filed within 48 months prior to date of application or from priority date.
The prescribed fees for examination for natural person: Rs. 2,500/- 
The prescribed fees for examination for other person: Rs. 10000/- 

Overall
  Minimum cost to be payed by a natural person for a patent: Rs.6000/-
  Minimum cost to be payed by other person for a patent: Rs.24000/-