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Today’s decision by the U.S. Court of Appeals for the D.C. Circuit in Comcast Corp. v. FCC (No. 08-1291, April 6, 2010, available at http://www.publicknowledge.org/pdf/comcast-decision.pdf ) is a major win for Internet backbone providers and setback for net neutrality proponents. The Court ruled that the Federal Communications Commission exceeded its “ancillary authority” under s. 4 (i) of the Communications Act of 1934 (47 U.S.C. s. 154(i)) in attempting to restrict Cable Operator and Internet Service Provider Comcast’s (the largest U.S. Cable provider and prospective acquirer of NBC Universal) network management practices. The case arose when Comcast subscribers discovered that the ISP was blocking their use of certain peer-to-peer networking applications, which allow sharing of files without passing through a central server. When the practice was challenged by several public advocacy groups, the FCC issued an order barring Comcast’s practices. The D.C. Circuit, in vacating the FCC’s order, found that the U.S. Supreme Court’s 2005 Brand X decision, which, in ruling that cable modem Internet service was “information service” under the 1996 Telecommunications Act, stated that the FCC would likely have “ancillary authority” to impose regulatory requirements on Cable Operators offering broadband service, particularly as to independent ISPs use of the cable networks, was non-controlling dicta. The Court further found that other provisions of the Communications Act constituted “statements of policy” that did not confer regulatory authority on the FCC or offer the necessary “independent justification” for an assertion of ancillary authority under established case law, and rejected the FCC’s assertion of an expansive interpretation of the ancillary authority power in favor of a restrictive one.

Given the Julius Genachowski-led FCC’s explicitly pro-net neutrality stance, underscored by the Commission’s release on March 16 of its “National Broadband Plan,” the Comcast v. FCC decision is a major blow to the FCC’s broadband policy and a major affirmation of Internet backbone providers’ rights to manage their networks as they see fit when not operating on a common carrier or Cable Operator-regulated basis. The FCC and the intervening parties may choose to appeal the decision to the U.S. Supreme Court, where, in the last decade of local competition wars, the FCC at times fared better than it did before the D.C. Circuit. Absent that, the FCC’s broadband policy and plans go back to the drawing board for a far less regulated treatment. For background information on this issue, see “U.S. Communications Law and Transactions” (Winter 2010), pp. 41-51, available at http://www.kurtinlaw.com/articles-whitepapers/ .

Fri, April 9, 2010 2:41:56 PM
Help Give Away Supreme Court Protest Bumper Stickers, 8th Analysis Installment, And More
From: The Pen
Add to Contacts
To: homan_steve@yahoo.com
________________________________________

Tens of thousands of you have already received your “Corporations Are
NOT The People” bumper stickers, which we have been sending out
mostly entirely for free, and more are being stuffed into envelopes
even as this alert is going out.

Now we need your help spreading this initiative to reverse the outlaw
Supreme Court even further and wider. We have created a special page
where you can pick up a 25-pack of these dynamic messages stickers,
at a very modest cost, just so we can keep this thing going.

Bulk Bumper Stickers: http://www.usalone.com/bumper_stickers_bulk.php

Please consider being the hero activist in your neighborhood by
distributing these bumpers stickers that EVERYBODY wants. Of all the
issues we have addressed in the last 5 years, this is the one that
has people mobilized the most, for on the issue of control of our
government by the corporations turns the survival of our democracy
itself.

And if you somehow missed the previous alerts and just want a free
sticker for yourself that would be this page.

Free Bumper Stickers: http://www.usalone.com/bumper_stickers.php

Not surprisingly, this is also the top issue at the new Independent
Voters page on Facebook. So again, if you are already on Facebook we
urgently need you to get involved there. We have a totally wide open
vote going on what the “Statement of Priorities” for this new
resource should be, so please go to the link below and participate
making sure YOUR priorities are represented.

[Facebook] Independent Voters page:
http://www.facebook.com/Independent.Voters?v=app_109302975758164

And again, please be patient if you are not a Facebook kind of
person, because we WILL build out an alternate connection page for
you once we get the thing really rolling.

You can even get the free bumper stickers from the Facebook page too!

[Facebook] Free Bumper Stickers:
http://www.facebook.com/Independent.Voters?v=app_106690312695773

The rest of the alert we will dedicate to the next of our much
anticipated installments tearing up into little itsy bitsy pieces the
rogue Supreme Court ruling to declare our country the kingdom of the
corporations. We’re not proud, we’re not tired. But there are still
yet more fundamental and unforgivable errors in this opinion we have
not yet addressed. This is the eighth, and it is entitled:

First Amendment Absolutism, But Only For Corporations Says The
Supreme Court 5

Here we confront the shameless hypocrisy of creating a super
protected status for the “speech” (amounting to nothing more than the
power to spend vast sums of money) of corporations, by the same
Supreme Court line up that has demonstrated zero tolerance for the
“free” speech of just about anybody else.

In his opinion, Kennedy, writing for The Supreme Court 5 (including
Roberts, Scalia, Thomas and Alito), can find no other reading of the
First Amendment except that the “speech” of corporations cannot be
constrained in any way “beyond all doubt” (opinion p. 19). Even
requiring them to maintain a PAC as a vehicle for their political
speech is too onerous of a paperwork burden he says (opinion pp.
20-21). And though previous courts and Congress have long recognized
a compelling governmental interest making sure ordinary citizens were
not drowned by a flood of corporate money, for Kennedy this was
somehow a new invention of the Austin case that he then arrogates to
overrule (opinion p. 31), specifically a governmental interest in
preventing

“… the corrosive and distorting effects of immense aggregations of
wealth that are accumulated with the help of the corporate form and
that have little or no correlation to the public’s support for the
corporation’s political ideas.”

That quote from Austin actually sounds pretty good to us just as it
was.

And of course his own citations to other cases which he provides for
this very quote proves that this concept in law is nothing new, but
instead backed by a long line of case precedents. On another page
(opinion p. 27) Kennedy cites a minority opinion from 1948, where
they complain that the majority in that case (U.S. vs. CIO) should
not have limited “undue influence” by a speaker’s “large
expenditures”. The point he was attempting to make was that there has
always been a line of dissent, of course proving nothing more than it
has always been the minority view.

The precept that there is a compelling governmental interest in
limiting undue financial influence over our elections has been long
recognized, long acknowledged, and long accepted, except by this same
grousing, grudge settling minority (indeed two of these same judges
were the dissenters in the Austin case itself), but which by the
unfortunate and ill-advised seating of one final corporatist partisan
has now been empowered to execute their long plotted judicial coup.

So what, you might now be asking yourselves, would be a compelling
governmental interest in limiting free speech? The opinion cites a
handful of some 20-30 plus year old cases, examples of people in the
military, people in prison, etc. (opinion pp. 24-25) But of course we
don’t have to look that far to find evidence of Kennedy’s hypocrisy.
This same line up of judges has spoken very recently on the free
speech rights of ACTUAL people, and let’s just see what they said.

In Garcetti v. Ceballos, 547 U.S. 410 (2006), Kennedy wrote the
opinion that a whistle blower, who was a deputy district attorney,
could be retaliated against for speaking out against wrongdoing by
the police. Somehow defending the free speech of someone charged with
protecting the integrity of our law enforcement agencies was not a
compelling government interest. But making sure multi-national
corporations are not even slightly inconvenienced in buying our
elections? That is, according to this same judge.

In Morse v. Frederick, 551 U.S. 393 (2007), Roberts wrote the opinion
that unfurling a nonsensical joke banner (”Bong Hits For Jesus”) off
of school property was such a threat to the foundations of our
society that it must be stamped out with the biggest possible boot, a
dire governmental emergency. But having our policy debate leading up
to an election totally dominated by corporate special interests? For
Roberts, not so much.

Yes, when it comes to actual people or real compelling interests
(like stopping police wrongdoing) the First Amendment is not for us.
Because we now have a majority on our Supreme Court for which only
the rights of corporations are supreme, inviolable, and sacrosanct.
But for more evidence of just how dreadfully bad this decision is,
you will have to wait until the ninth bone chilling installment of
the Night of the Living Dead Dissents.

There is active gender discrimination against women being practiced on a very large level in India. This cannot be curbed in a single day. We cannot go around changing the psychology of the people who are steeped in ancient traditions. But will introduction of Gender Biased Laws make the fairer sex less vulnerable? While the predators, preceptors of crime against women right from the womb to the tomb go scot free, it’s left for the emotionally scarred, physically battered to seek the only way out-Divine intervention! Which isn’t much in a country that venerates the female form as an idol only to vilify her in the flesh.

Can the new face of global India gives its women it’s due or will the gender bender issue continue unabated?

The current equation

Former CJI R.C. Lahoti in a conference suggested that, while giving a judgment judges to keep the following points in mind whilst dealing with cases pertaining to women. Firstly, the issue of gender justice should not become a war between two sexes. Both should complement each other rather than suspect each other. Secondly, perception changes were needed for greater social awareness.

Women who constitute half of the world’s population and work, two third of the world’s working hours, earn just one tenth of the world’s income and less than one-tenth of world’s property which is the clear reflection of gender based discriminated. We are proud of the fact that India was one of the first countries in the world to give women the right to vote. The Indian Constitution is one of the most progressive in the world, and guarantees equal rights for men and women. All this is cited as evidence to support the contention that Indian women are free and equal members of society. But the truth is every hour, two women are raped, there are three kidnapping and abduction case, one dowry death, four molestation cases, one case of sexual harassment and six cases of cruelty by husbands and relatives. The statistic thus show 17 crimes committed against women every hour. The Indian Judiciary enjoys a reputation of being gender sensitive, despite the rights granted by the Constitution and special legislations; the reality is that there is widespread non-implementation of the legislations, structural inequalities and power imbalances within the society. So we can say that, “All law is not justice and all justice is not law”. Justice is a combination of various factors; namely, good legislation, implementation, etc. and Law in action is more important than law itself.

Why women do not get justice despite equality?

There is no lack of legislation, but lack of implementation of the same, giving rise to gender inequality. Helpless even at birth the crime starts before birth. Girls are still despised for being born. Inhuman practices like female infanticide and foeticide, which draw sustenance from indefensible cultural attributes such as preference for sons, can have no place in a civilised society. These social evils, however, cannot be eradicated through laws and governmental regulations alone. We need strong and sustained societal action, supported by proper public education. Women’s empowerment, however, has many other important dimensions. The handicap they face in education, healthcare and employment must be removed. They must be treated with respect and dignity both at home and in the public sphere. The most basic criterion of safety is, of course, the right to live…right to be born in the first place.

In all fields of human and state activity, there has been increase in crime against women be it rape, molestation, eve-teasing, harassment at work place, dowry death, all, constituting criminal offences apart from being violation of human rights . Right to live with dignity in an atmosphere where there is no unlawful assault on her modesty.

To this day, in India, the blessing for a pregnant woman is ‘to bear a baby boy only’ whether she is being blessed by her mother-in-law or her own mother who themselves are women. The birth of baby boy is cherished so much that the whole family will have their own interest in rearing the child and if it is a baby girl it is vice-versa. When a girl child is born, asserted to be delicate and physically weaker, her toys are generally dolls, dresses, flowers, and cosmetic-set, kitchen-set, cradles. Very rare is the occasion, when a girl child is gifted with toys like an airplane, a motorcar, a gun or a bat-ball. The collection of gold and other things to be included in her belongings during her marriage starts at the cradle stage itself, irrespective of any class. This is the most common form of biasness done by us between a boy and a girl in our daily lives. The status of a girl-child in a lower or lower middle-class family is a burden since her birth. And this is slowly inflicted into her brain during the process of her growth. Even when a girl grows, the attitude of parents towards the girl is different from that of a boy. Girl is restricted to move outside of the house in night but the boy is not, even sometimes a younger boy controls his sister’s movement from the house. The other means of exploitation include a big issue of child marriage. A girl too young to take life seriously, a girl too young to understand the meaning of ‘life’ and ‘marriage’, has to step into the world of thorns.

Violence when she gets married:

Marriage in India is regarded as the social alliance between two families instead of two individuals. The bride is expected to serve her husband and his family and ensure their happiness and well being. There was no question of her happiness, expectation or content. In India the bride is subjudicated by her mother-in-law and other members of her husband’s family, most of the time including even her husband. She is expected to observe ‘purdah’, not to speak to elders, speak in low voice to younger members of family, not to speak or meet her husband except at midnight and bear all harsh words and sufferings for even minor fault and above all never to express her sorrows or utter a word of distress to anyone. The degree of satisfying her in-laws depends on the fact as to how much dowry she is able to procure from her parents. She is under the false belief, identify with the opinion that once married to her husband, she have to appease him in every way possible. She perceives it as their duty to go through the atrocities committed by partners, since he attains the place of God rather ‘Pati Parmeshwar’.

Violence struck by husbands on their wives:-

• Verbal abuse- like name calling, threatening, intimidating.
• Emotional abuse- criticizing constantly, displaying extreme jealousy, publicly humiliating, isolating the partner, domination.

• Financial abuse- controlling the money, concealing joint assets, keeping the other impoverished, using partner’s money without consent. These abuses though may be witnessed in an infant form in the initial stages but in later stages they might take an inhumane form as listed below.

• Physical abuse- pushing, slapping, hitting, kicking, choking, puling hair, biting, using weapons, tying the partner up, locking the partner in a room with denial of food.

• Sexual abuse- raping, physically attacking sexual parts, forcing the partner to perform sexual acts.

In India, the woman victim transforms her pain into punishment, pleasure, inevitable and natural. Instead of speaking out, she tries to suppress her pain.

What does violence means?

NCW Chairperson Girija Vyas said, “It is a matter of grave concern. When the police and the officials are expected to protect the young children and teenage girls at the orphanage, they themselves are turning perpetrators of this kind of injustice”.

Violence against women is partly because it is assumed men to be superior. The subordinate status of women, much of gender violence is considered normal and enjoys social sanction. The expressions of violence take place in a man-woman relationship within the family, state and society. Usually, domestic aggression towards women and girls, due to various reasons remain hidden. Cultural and social factors are interlinked with the development and propagation of violent behaviour. A female child grows up with a constant sense of being weak and in need of protection, whether physical social or economic. This helplessness has led to her exploitation at almost every stage of life.

Violence against women is a wide spread problem. According to available statistics from around the world, about 33 per cent of the women have experienced violence in one form or the other in their intimate relationship at some point in their life. For a variety of reasons, women may fail to report violence that takes place in the family. This is an average based on available national surveys across industrialized and developing countries published in the report of the World Health Organization in 1997. The family and its operational unit is where the child is exposed to gender differences since birth, and in recent times even before birth, in the form of sex-determination tests leading to foeticide and female infanticide.

In a report filed with United Nations in 1992, Radha Coomaraswamy mentioned the following data.

on Violence against Women; points out that women are vulnerable to various forms of violent treatment for several reasons, all based on gender.

1) Because of being female, a woman is subject to rape, female circumcision/genital mutilation, female infanticide and sex related crimes. This reason relates to society’s construction of female sexuality and its role in social hierarchy.

2) Because of her relationship to a man, a woman is vulnerable to domestic violence, dowry murder, sati. This reason relates to society’s concept of a woman as a property and dependent of the male protector, father, husband, son, etc.

3) Because of the social group to which she belongs, in times of war, riots. Or ethnic, caste, or class violence, a woman may be raped and brutalized as a means of humiliating the community to which she belongs. This also relates to male perception of female sexuality and women as the property of men.

Combining these types of abuse with the concept of hierarchical gender relations, a useful way to view gender violence can be done by identifying where the violence towards women occurs. Despite the apparent neutrality of other terms, domestic violence is nearly always a gender-specific crime, perpetrated by men against women. From a feminist standpoint, it could be said that the occurrence of domestic violence against women arises out of the patriarchal setup, the stereotyping of gender roles and the distribution of power, real or perceived, in society.
Criminal and Civil safeguards for women in India

The Universal Declaration of Human Rights supports the crusade against domestic violence since it favors protecting the basic right of everyone to live a dignified life .CEDAW (Convention on Elimination of Discrimination against Women) makes it mandatory for its member nations to make laws prohibiting domestic violence. India is a member of CEDAW. In 1999, the Lawyers Collective came out with its draft law on domestic violence after nation-wide consultations with many women’s groups. It was drafted in accordance with the UN Framework for Model Legislation on Domestic Violence. After much pressure from women’s groups, the Government of India introduced a Bill on domestic violence in the Lok Sabha, titled ‘The Protection from Domestic Violence Bill 2001.

Domestic Violence Act was the first substantial step in the direction of vanquishing the questionable public/private distinction traditionally maintained in the law, which has been challenged by feminists time and again. Previous to this act in 1983, domestic violence was recognized as a specific criminal offence by the introduction of section 498-A into the Indian Penal Code. It highlights the criminal dimension of mental and physical cruelty inflicted by the husband or his relatives over a woman. The punishment is imprisonment for up to three years and a fine. The complaint could be lodged by the person itself or by any relative on her behalf. But the IPC never used the term domestic violence to refer to this objectionable practice. In fact, the only similar class of offences addressed by the IPC dealt with cruelty to married women. This posed a problem especially where the victims were children or women who were dependant on the assailant. But Domestic violence Act also extends its provisions to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.

One of the most important features of the Act is that it also provides a woman a right to reside in the matrimonial and shared household, whether or not she has any title in the household. In addition to physical violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual violence like forced intercourse, forcing his wife to look at porn or any other obscene pictures or material and child sexual abuse. It also includes in its ambit sexual abuse like marital rape also. Another significant step has been to recognize Economic Violence. Under the Act, Economic Violence is: Not providing money, food, clothes, medicines, causing hindrance to employment opportunities, forcing a woman to vacate her house, not paying rent. The Act thus deals with forms of abuse that were either not addressed earlier, or that were addressed in ways not as broad as done here.

Women and Fundamental Rights

There are various legislations that have been passed in India with a view to curb the imbalance in gender hierarchy and aid in women’s empowerment. The constitution of India guarantees various rights for women in this regard.

• Article 14 states that there shall be equal protection of the law and equality before the law which means that the Courts or any Law enforcement agency should not discriminate between a man and a woman.
• Article 15 guarantees the right against discrimination. Article 15(3) talks about the special protection for women.

• Article 16 provides the right to equal opportunity in terms of public employment irrespective of the sex of the person.

• Article 19 guarantees freedom of speech and expression. This article fosters the right to equality, by providing the necessary freedoms needed to live in society.

• Article 21 guarantees the right to life, it includes The right to be free of violence (In Francis Coralie Mullin v. Union Territory Delhi), The right to dignity (In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan), The right to shelter (In Chameli Singh v. State of U.P.)

• Article 39 talks about the certain principles of policy that need to be followed by the state which are securing adequate means of livelihood equally for men and women, equal pay for equal work among men and women, and the health and strength of workers, men and women are not abused. Article 42 requires the state to make provision for securing humane conditions of work and maternity relief.

Other enactments which are reflective of the aim of gender justice

• Trafficking in women have been dealt with by specific acts such as the Indecent Representation of Women (Prohibition) Act, 1986, Immoral Traffic (Prevention) Act, 1986 and Section 294 of the IPC which relates to obscenity.

• For the issue of sati, the Commission of Sati (prevention) Act was passed in 1987, even though Sati was abolished in 1829.

• The Pre-natal Diagnostic Techniques (Regulation and Prevention) Act was passed in 1994 to curb the rise in female foeticide.

• To secure gender justice for working women, the related enactments are; Maternity Benefit Act, 1961, Equal Remuneration Act, 1976, Factories Act, 1948.

• For enhancing social justice for women, enactments such as the Hindu Marriage Act, 1955, which made the marriageable of women 18, now its been amended to 21; The Hindu Succession Act, 1956 ensures women’s right to inherit parental property; The Hindu Widow Remarriage Act, 1956 legalised widow remarriage.

Protection provided to women by the International Associations

Globally, the United Nations has established a strong mandate for gender justice. The focus on gender equality and gender justice has been there since the inception of the UN. In 1946, a separate body was formed to work on the “advancement of women”. The Decade for Women (1976-1985) and four world conferences on women (between 1975 and 1995) contributed significantly to raising awareness and commitment to gender equality and gender justice. In 1995, the Beijing Declaration and Platform for Action had been framed for guiding work at national level. The human rights treaty on gender equality – The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has been ratified by 185 states and the optional protocol by 90 states. Since 1995 and the adoption of gender mainstreaming as a critical strategy for achieving gender equality, intergovernmental bodies – such as the General Assembly, the ECOSOC and the Commission on the Status of Women – have worked to mainstream gender perspectives as an integral part of all policy areas. At the 2005 World Summit, world leaders reiterated that “progress for women is progress for all”. The United Nations Development Program (UNDP) also has the Gender Development Index (GDI).

The position of women in India can actually be regarded to be in a confused state. In the rural societies the female is given the status of a goddess on one hand and she is looked upon as a curse on the other. And in the urban societies it goes nearly on the same lines. In these places mostly the women are seen in a materialistic manner. All what can be derived from the scenario is that there is gender discrimination been practiced on a very large level which cannot be curbed in a single day. We cannot go around changing the psychology of the people in regards to this. All what can be done is to introduce the Gender Biased Laws. These laws will help to uplift the position of women and bring them on par with the men and bring them to equal strata.

Please consider women as your mothers, sisters, wife (Life partners). If we mend our ways, then restoration of their rights to them would become meaningful.

Patent law
The introduction of patent has made use of applications of professional services and commodities more professional in India. So what if turmeric and basmati were freely used Indian produces. Now they have a trademark associated with them, making them more Indian. Like the rest of the developed world recognises the need for patenting inventions, drugs, products and services, if India needs to become a super power, recognising Patent and its laws is critical to the growth of its economy. It makes competition so much easier to deal with worldwide.

Meaning of Patent

A patent is a set of exclusive rights granted by a state to an inventor or his assignee for a fixed period of time in exchange for the disclosure of the invention. It refers to a grant of some privilege, property, or authority made by a government or the sovereign of the country to one or more individuals. The instrument by which it made is known as Patent. An invention is the creation of intellect applied to capital and labour to produce something new and useful. Such creation becomes the exclusive property of the inventor on the grant of patent.
The principle which explains the Indian patent law is based on:
Novelty or inventiveness:

The novelty of invention is dependent upon the state of prior art, i.e. the existing knowledge and similar inventions already known in the particular field. There would be no originality if there has been prior publication and prior use of the same or an identical invention. E.g. The recent grant of patent in USA to Turmeric products was challenged on this ground, the Indian council of scientific and industrial research (CSIR) challenged the grant of patent on Turmeric by the US patent office on the ground that patent could not be granted since there was no novelty in the invention. Also, that what was patented was already published in Indian texts and use of Turmeric preparations has been made in our country since time immemorial. The CSIR was successful in getting the grant of patent to an American company revoked.

Usefulness or utility: The invention besides being new and non-obvious must also be useful. An invention which is new and also non-obvious but which cannot be put to any beneficial use of mankind cannot be patented. In some countries, not so useful inventions are protected as utility models. But that concept is not statutorily recognized in India.

Non-obviousness: The invention must be non-obviousness to a person reasonably skilled in the art to which the invention relates. Provisions in U.S: How Different From India Patentability in USA.

Novelty: In India, a person who files the application first, gets the priority. There is no concept of first to invent in India.

Inventive entity (non-obviousness): Unlike India where patent is granted only for inventions, in US patent is granted for inventions as well as discoveries.

Who can apply: In India, only true and first inventor or his assignee may apply for the patent.

Opposition: In India, the concept of both pre-grant as well as post-grant opposition is there.

The PCT system is a patent filing system and not an international patent granting system. The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970, amended in 1979, and modified in 1984 and 2001. A majority of the world’s countries are signatories to the PCT, including all of the major industrialized countries. As of November 1, 2008 there were 139 Contracting States to the PCT. India became a member of PCT on December 7, 1998.

Patent Procedure

The procedure for granting patent, the requirements placed on the patentee and the extent of exclusive rights vary between countries according to the national laws and international agreements. Typically, however a patent application must include one or more claims defining the invention which must be Novel, Inventive and Useful. In many countries certain subject areas are excluded from patents such as business methods and mental acts. A patent is a negative right which grants exclusive rights to a patentee to prevent or exclude others from making, using, selling, offering to sell or importing the invention. The patent law recognizes the exclusive right of a patentee to gain commercial advantage out of his invention. This is to encourage the investors to invest their creative faculties, knowing that their invention would be protected by law and no one else would be able to copy their inventions for certain period during which the respective investors would have exclusive rights. India joins the number of countries adopting TRIPS.

1. The earliest patent laws were introduced in 1833 as International Character of Patent in Paris. The Paris convention sets out a range of basic rules relating to patents, and although the convention does have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all notable current patent system. The most significant aspect of this convention is the provision of the right to claim priority i.e., filing an application in any one member state, and receive the benefits of the original filing date. Because the reference to a patent is intensely date driven, this right is fundamental to modern patent usage. This key international convention related to patents is for the protection of industrial property.

2. TRIPS Agreement

The WTO was established through the ‘MARKKESH’ agreement establishing the WTO. Intellectual property became a part of WTO in Uruguay. It was introduced by the developed countries to be a part of WTO. It got the status in the WTO as trade related aspect of intellectual Property rights (TRIPS). Intellectual property was opposed by some developing countries to be a part of WTO as they argued that “it is a tool used by the developed countries for exploiting the developing countries and colonizing them”. However their opposition failed and TRIPS agreements was finally signed on 15th April 1994 by nearly 125 member countries. However it only came into effect on 1st January 1995.

3. Standardizing the Patent system

The issue related to similar patent standards across the countries led to a sharp division between the advanced developed countries (North) and the developing countries (South). In the southern countries (e.g India), the governments usually practice process patent regime and that too with varying degree of enforcements under their laws. The North, on the other hand always insisted on the product patent regime in the South as practiced in the North. The question of whether the north prefers product or process patent in the south is very important. The conventional economic reason underlying the conflict of interest between Northern and Southern countries is easy to understand.

Northern countries are the major producers of newer technologies. Southern countries on the other hand depend a lot on the North for technologies needed for their growth and development. In case of process patent in the South, it is often be the case that the southern firm develops a different process of production that uses some of the cheap resources available in the South. As a result the Northern firm faces competition from the Southern firm in the Southern market and thereby it is derived of some of the monopoly benefits it could derive from selling the products in the south.

If south practices product patient, Northern firm is protected from any competition in the same product in the southern market. Thus, product patent in the South would allow northern firm to get the monopoly benefit in the South. Hence, Northern firm would prefer product patent in the South.

4. Introduction of Pharmaceutical Product Patent in India

India being a member of WTO has to implement TRIPS agreement in totality. Being a social welfare state, the Indian Patent act was framed in a manner that ensured that the patents rights relating to pharmaceuticals could be regulated by the government. The patent act, 1970 also excluded agricultural products from patentability. However by virtue of Article 65(1), (2), (3) and (4) India has to provide within 10 years effective product patent in pharmaceutical industries. Principles Underlying the Patent Law in India-The Indian Patents act, 1970 and the patent rule, 2003 regulate the grant, the operative period, the revocation and infringement, etc, of the patents. The patent act was amended in 2005 and 2006 for the purpose of contemporary adjustment in patent laws.

Total number of application filed, patent granted

The total number of patents in force was 17,066 by end of March 2007 of which 3,473 patents stands in the names of Indians in USA.

Thursday, 01 April 2010 by Kian Ganz
Khaitan & Co has hired former White & Case New York associate Shishir Mehta as a partner in Mumbai to start up a banking and finance practice.

Mehta has joined the Mumbai office today (1 April) and will focus on building up a specialist banking and finance practice, as well as on clients from Gujarat where he is originally from.

Khaitan & Co partner Rabindra Jhunjhunwala said: “Banking and finance are areas which we’ve been wanting to strengthen. With his foreign experience and his Indian contacts I think we’ve found a good guy to lead the practice in Bombay.”

Mehta graduated from NLSIU Bangalore in 1999, completed an LLM at London School of Economics and sat his articles at Slaughter and May in London.

He had worked at White & Case in New York since 2005, returning to India in the summer of 2009 to explore local career opportunities.

Mehta said: “This is truly a deal that complements me and them. For me it’s a very good platform and the kind of work which we can do together is tremendous. I think there’s huge scope to synergise existing clients and a lot of the Indian work that is happening in Singapore.”

He added that he would also focus on business from Gujarat, which was akin to his “backyard”. “There are very few Gujarat lawyers in the country but Gujarat is one of the most industrial states in the country. It’s a personal interest of mine and there are big players in the market who have not gone into Gujarat in an organised way.”

Mehta explained that the opportunities in the Indian market were one of the main reasons he had returned.

“In London you are one of 10,000 lawyers in the city,” he said. “Here you can really carve out a niche for yourself.”
© 2009 Legally India

by William Fisher
April 6, 2010 by Inter Press Service
NEW YORK – Two U.S. federal prisons are being used overwhelmingly to hold Muslim prisoners and prisoners with unpopular political beliefs, and are practicing religious profiling, retaliation and arbitrary punishment, according to a lawsuit filed by the Centre for Constitutional Rights (CCR).
The suit names U.S. Attorney General Eric Holder and the Justice Department, the agency that houses the U.S. Bureau of Prisons (BOP) which runs the two units, one in Terre Haute, Indiana, the other in Marion, Illinois.
“These units are an experiment in social isolation,” said CCR Attorney Alexis Agathocleous. “People are being put in these extraordinarily restrictive units without being told why and without any meaningful review.”
At the same time, some prisoners at the experimental “Communications Management Units” (CMUs) are protesting their being designated as “terrorists” by the Justice Department, despite never having been convicted of any terror-related crime.
One such prisoner is Dr. Rafil Dhafir, an American Iraqi-born upstate-New York oncologist. He was arrested by 85 federal agents who descended on his home, handcuffing him in his driveway. Then Attorney General John D. Ashcroft referred to him as a terrorism supporter.
Dhafir was convicted in 2005 and sentenced to 22 years in prison for violating the Iraqi sanctions by sending money to Iraq through his charity, “Help the Needy”, and for fraud, money laundering, tax evasion, and a variety of other nonviolent crimes. Five other people, including his wife, had already pleaded guilty to charges in connection with the case.
In the period leading up to his trial, political figures strove to paint Dhafir with a broad terrorist brush. Then New York State governor George E. Pataki described Dhafir’s as a “money laundering case to help terrorist organisations…conduct horrible acts.”
The New York Times reported that prosecutors hinted at national security reasons for holding Dhafir without bail.
Federal prosecutors heralded his arrest as another blow in the Justice Department’s war on terrorism. However, they never filed any charges related to terrorism nor did they prove any link to terrorists.
In a letter to a supporter, obtained by IPS, Dr. Dhafir wrote, “I am really upset about the lies concerning the DOJ list. I have every intention of going after them to correct this falsehood by any legal means. I think that we should publicise this as much as possible and ask people to protest these lies. I also ask your input regarding how to remedy this travesty.”
The CCR lawsuit is challenging violations of fundamental constitutional rights, including the right to due process, at the two CMUs. It was brought on behalf of five current and former prisoners, and the spouses of two prisoners.
The experimental prison units were created in 2006 and 2007, during the administration of George W. Bush. They were designed to isolate certain prisoners from the rest of the prison population and the outside world.
Between 65 and 72 percent of CMU prisoners are Muslim men, a fact that attorneys say demonstrates that the CMUs were created to allow for the segregation and restrictive treatment of Muslims based on the discriminatory belief that such prisoners are more likely than others to pose a threat to prison security.
Other prisoners appear to be transferred to the CMU because of other protected First Amendment activity, such as speaking out on social justice issues or filing grievances in prison or court regarding conditions and abuse.
“In addition to heavily restricted telephone and visitation access, CMU prisoners are categorically denied any physical contact with family members and are forbidden from hugging, touching or embracing their children or spouses during visits. Attorneys say this blanket ban on contact visitation, which is unique in the federal prison system, not only causes suffering to the families of the incarcerated men, but is a violation of fundamental constitutional rights,” the CCR says.
According to the Bureau of Prisons, the 76 inmates housed in the isolation units are there to prevent them from furthering acts of terrorism.
But civil liberties advocates say the extreme conditions in the CMUs amount to abuse and that the programme violates the inmates’ constitutional rights. The BOP says CMUs were set up after authorities discovered that some Islamic militants were able to send messages abroad from their prison cells.

© 2010 IPS North America

The U.S. Court of Appeals largely affirmed the rejection of Tiffany’s trademark claims against eBay over on-line sale of counterfeits earlier today (April 1), but sent back for further consideration one false advertising claim. Specifically, the 45-page opinion by Judge Sack affirmed the dismissal of claims for direct trade infringement, contributory trademark infringement and trademark dilution.

Some key points:

Direct Trademark infringement: eBay used the Tiffany mark accurately to describe genuine Tiffany items offered for sale, and never suggested affiliation/endorsement links between Tiffany and eBay. eBay also let Tiffany post an “About Me” page which warned about counterfeits items. Tiffany’s generalized knowledge that counterfeit Tiffany items were sold on eBay was not enough to make it liable for direct trademark infringement, especially as eBay promptly pulled challenged items brought to its attention. “To impose liability because eBay cannot guarantee the genuineness of all of the purported Tiffany products offered on its website would unduly inhibit the lawful resale of genuine Tiffany goods.” (This discussion covered both Lanham Act and New York statutory claims.)

Contributory Trademark Infringement: The Court devotes most of its analysis to this issue. Contributory trademark infringement liability is rejected because Tiffany did not show eBay knew or had reason to know of specific instances of actual infringement as to which it took no action. “For contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.” Finally, the Court says someone could be contributorily liable on a willful blindness theory, but eBay had not been willfully blind. Amicus the Council of Fashion Designers of America had argued that if specific items have to be pointed out, mark owners will have to monitor eBay and similar sites 24/7 and that mark holders cannot afford to bear this burden. Says the Court in rejecting this: “First, and most obviously, we are interpreting the law and applying it to the facts of this case. We could not, even if we thought it wise, revise the existing law in order to better serve one party’s interests at the expense of the other’s.”

Trademark dilution: Claims under both Lanham Act “famous” mark provisions and New York’s General Business Law failed because there was no second mark of EBay’s with which the Tiffany mark was being associated.

False advertising (Lanham Act): This claim goes back to the District Court. At issue are ads to drive traffic to eBay saying Tiffany items could be bought there. These statements weren’t literally false; at most, they were misleading or confusing. Such ads can’t imply all items are real when in fact many are not. But Tiffany has to show that a “statistically significant part of the commercial audience holds the false belief allegedly communicated by the challenged advertisement.” The Court says worries about this crippling e-commerce sites with false advertising claims are overblown. “A disclaimer might suffice.”

If there are two broad philosophical differences among the Supreme Court justices these days, it might be these: 1) whether the Constitution be interpreted as it’s written or through the lens of our society’s evolving standards and mores and 2) whether justices are misguided to look to foreign rulings and the law of other countries when seeking guidance on cases. WSJ.com
On the second issue, which tends to get less airtime than the first, Justice Stephen Breyer on Thursday made some rather pointed remarks. Breyer, who’s long been okay with looking abroad for guidance (as opposed to, say, Justice Antonin Scalia), said the debate was interesting, but not all that meaningful. “When I do read things, I can read what I want,” Breyer said. Click here for the NLJ story; here for a story from the Associated Press.
Speaking on Thursday at SAIS — the School for Advanced International Studies at Johns Hopkins — Breyer said, in the words of the NLJ, that if “judges in another country with similar laws have a similar case, a judge should be able to consider how they solved it.”
Elucidated Breyer:
If I see something written by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the court somewhat like mine, why can’t I read it, see what they’ve done? I might learn something.
We understand that this is the American Constitution, but why can’t I read it? There are similar things. I do read it, and if I read it, why don’t I just refer to that fact? I know it isn’t binding, so what’s the problem? That’s my view.
It’s certainly not the view of Justice Scalia, who has articulated many times that he doesn’t think much of foreign law, at least not as a guide to how he should decide cases. In a speech in 2005, for example, Scalia said:
I do not use foreign law in the interpretation of the United States Constitution. . . . But apart from that, if you talk about using it [in regard to] constitutional law, you know, you talk about it’s nice to know that, you know, that we’re on the right track, that we have a same moral and legal framework as the rest of the world. But we don’t have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we’re after is to, you know, do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it’s full of, you know, statements that make very clear they didn’t have a whole lot of respect for many of the rules in European countries.
Copyright 2008 Dow Jones & Company, Inc.

by Bob Egelko
March 31, 2010

SAN FRANCISCO — The Bush administration wiretapped a U.S.-based Islamic charity under an illegal surveillance program that was not authorized by Congress or the courts, a federal judge in San Francisco ruled today.
The ruling by Chief U.S. District Judge Vaughn Walker marked the first time that a court has found that the government illegally wiretapped an individual or organization since President George W. Bush authorized warrantless wiretapping of suspected foreign terrorists in 2001.
The government inadvertently sent a classified document in 2004 to the Al-Haramain Islamic Foundation, reportedly showing that two of its lawyers had been wiretapped. Several months after the surveillance began, the government classified Al-Haramain as a terrorist organization, a description its leaders called false.
The now-defunct charity, which was headquartered in Oregon, returned the document at the government’s request and could not use it as evidence in a lawsuit it filed over the wiretapping. But Walker said today that Al-Haramain had established, through public statements by officials and nonclassified evidence, that the government had intercepted its calls without obtaining the court warrant required by a 1978 law.
Bush acknowledged in December 2005 that he had ordered the National Security Agency, after the terrorist attacks of Sept. 11, 2001, to intercept phone calls and e-mails between Americans and suspected foreign terrorists without a warrant. He claimed the power to override the 1978 law’s requirement of advance court approval for all such surveillance.
Today, Walker said Bush had lacked that authority.
Under the argument advanced by the Bush administration, “executive branch officials may treat as optional … a statute (the 1978 law) enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority,” the judge said.
That “theory of unfettered executive-branch discretion” holds an “obvious potential for governmental abuse and overreaching,” Walker said.
Walker’s ruling dealt only with the Al-Haramain wiretapping, and not any other surveillance the government may have conducted under Bush’s program. But Al-Haramain’s lawyer, Jon Eisenberg, said the decision amounts to a finding that the entire program was illegal.
“Inherent in what Walker has done in this case is a determination that President Bush’s program of warrantless surveillance was unlawful,” Eisenberg said. “Everybody has to follow the law, including the president.”
He said his clients, Al-Haramain and the two lawyers, would ask for the damages the law allows – $20,200 each, or $100 for each day of illegal surveillance – plus punitive damages and attorneys’ fees.
The ruling was also a rebuff to President Obama. Although Obama had criticized Bush’s surveillance program while running for president, Obama’s Justice Department argued that courts lacked the power to decide whether the program was legal because any evidence of actual wiretapping was a secret that could not be disclosed without damaging national security.
Walker described the Justice Department’s arguments as “nit-picking” and “acrobatics.” He said the government had spurned every offer to justify its conduct in closed-door proceedings that could have protected any state secrets.
Walker’s finding of illegal wiretapping could lead to the first ruling by an appellate court on the legality of the surveillance program. A federal judge in Michigan said in 2006 that Bush had exceeded the president’s constitutional powers in putting the warrantless wiretapping program in place, but an appeals court overturned the ruling – without deciding the legality of the surveillance effort – because none of the plaintiffs could show that their calls had been intercepted.
The Justice Department declined to say whether it would appeal today’s ruling and instead issued a statement focusing on Attorney General Eric Holder’s recent restrictions on government claims of secrecy. The new rules require a high-level Justice Department committee to review all such claims, with the attorney general having the last word.
The new policy strikes “an appropriate balance between rebuilding the public’s trust in the government’s use of this (secrecy) privilege while recognizing the imperative need to protect national security,” the department said.
© 2010 Hearst Communications Inc.

While torture and aggressive war may have been the most serious crimes which the Bush administration committed, its warrantless eavesdropping on American citizens was its clearest and most undeniable lawbreaking. Federal District Judge Vaughn Walker yesterday became the third federal judge — out of three who have considered the question — to find that Bush’s warrantless eavesdropping program was illegal (the other two are District Judge Anna Diggs Taylor and 6th Circuit Appellate Judge Ronald Gilman who, on appeal from Judge Taylor’s decision, in dissent reached the merits of that question [unlike the two judges in the majority who reversed the decision on technical "standing" grounds] and adopted Taylor’s conclusion that the NSA program was illegal).
That means that all 3 federal judges to consider the question have concluded that Bush’s NSA program violated the criminal law (FISA). That law provides that anyone who violates it has committed a felony and shall be subject to 5 years in prison and a $10,000 fine for each offense. The law really does say that. Just click on that link and you’ll see. It’s been obvious for more than four years that Bush, Cheney, NSA Director (and former CIA Director) Michael Hayden and many other Bush officials broke the law — committed felonies — in spying on Americans without warrants. Yet another federal judge has now found their conduct illegal. If we were a country that actually lived under The Rule of Law, this would be a huge story, one that would produce the same consequences for the lawbreakers as a bank robbery, embezzlement or major drug dealing. But since we’re not such a country, it isn’t and it doesn’t.
Although news reports are focusing (appropriately) on the fact that Bush’s NSA program was found to be illegal, the bulk of Judge Walker’s opinion was actually a scathing repudiation of the Obama DOJ. In fact, the opinion spent almost no time addressing the merits of the claim that the NSA program was legal. That’s because the Obama DOJ — exactly like the Bush DOJ in the case before Judge Taylor — refused to offer legal justifications to the court for this eavesdropping. Instead, the Obama DOJ took the imperial and hubristic position that the court had no right whatsoever to rule on the legality of the program because (a) plaintiffs could not prove they were subjected to the secret eavesdropping (and thus lacked “standing” to sue) and (b) the NSA program was such a vital “state secret” that courts were barred from adjudicating its legality.
Those were the arguments that Judge Walker scathingly rejected. All of the court’s condemnations of the DOJ’s pretense to imperial power were directed at the Obama DOJ’s “state secrets” argument (which is exactly the same radical and lawless version, as TPM compellingly documented, used by the Bush DOJ to such controversy). From the start, the Obama DOJ has engaged in one extraordinary maneuver after the next to shield this criminal surveillance program from judicial scrutiny. Indeed, their stonewalling at one point became so extreme that the court actually threatened the Obama DOJ with sanctions. And what TPM calls the Obama DOJ’s “Bush-mimicking state secrets defense” has been used by them in one case after the next to conceal and shield from judicial review a wide range of Bush crimes — including torture, renditions and surveillance. As the Electronic Frontiers Foundation put it: “In Warrantless Wiretapping Case, Obama DOJ’s New Arguments Are Worse Than Bush’s.”
That’s why this decision is such a stinging rebuke to the Obama administration: because it is their Bush-copying tactics, used repeatedly to cover up government crimes, which the court yesterday so emphatically rejected. And it’s thus no surprise that media accounts tie the Obama administration to the cover-up of this program at least as much as the Bush administration. See, for instance: Charlie Savage and James Risen in The New York Times (”A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush”); Time (”The judge’s opinion is pointed and fiercely critical of the Obama Administration’s Justice Department lawyers” and “The judge claims that the Obama Administration is attempting to place itself above the law”). The 9th Circuit Court of Appeals also previously condemned the Bush/Obama “state secrets” position as abusive and lawless.
In December, 2005, The New York Times revealed that the Bush administration had been doing for years exactly that which the law unambiguously said was a felony: eavesdropping on the electronic communications of Americans (telephone calls and emails) without warrants. We knew then it was a crime. Three federal judges have now concluded that it was illegal. And yet not only do we do nothing about it, but we stand by as the Obama administration calls this criminal program a vital “state secret” and desperately tries to protect it and the lawbreakers from being subject to the rule of law. This decision may make it more difficult for the Obama administration to hide behind sweeping secrecy claims in the future, but it won’t negate the fact that we have decided that our leading political officials are completely free to commit crimes while in power and to do so with total impunity.
* * * * *
One related note: back when Judge Diggs Taylor ruled that the Bush NSA program was unconstitutional, law professors Orin Kerr and Ann Althouse (the former a sometimes-Bush-apologist and the latter a constant one) viciously disparaged her and her ruling by claiming that she failed to give sufficient attention to the Government’s arguments as to why the program was legal. Althouse was even allowed to launch that attack in an Op-Ed in The New York Times. But as I documented at the time, the argument made by these right-wing law professors to attack Judge Taylor was grounded in total ignorance: the reason the court there didn’t pay much attention to the legal justifications for the NSA program was because the Bush DOJ — just like the Obama DOJ here — refused to offer any such justifications, insisting instead that the court had no right even to consider the case.
That’s why I find it darkly amusing that, today, the same Orin Kerr is solemnly lecturing The New York Times that Judge Walker here did not consider the merits of the claims about the program’s legality because the Obama DOJ argued instead “that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege.” Kerr is wrong when he says that this ruling does not constitute a decision that the Bush NSA program was illegal — it does exactly that, because the plaintiffs offered evidence and arguments to prove it was illegal and the Obama DOJ (like the Bush DOJ before it) failed to offer anything to the contrary — but he ’s right that Judge Walker did not focus on the merits of the defenses to the NSA program because the Obama DOJ (like the Bush DOJ) refused to raise any such defenses. But exactly the same thing was true for Judge Taylor when she ruled three years ago that the NSA program was illegal, which is why the right-wing attacks on her judicial abilities back then (led by Kerr and Althouse) were so frivolous and misinformed.
Copyright ©2010 Salon Media Group, Inc.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy”, examines the Bush legacy.