Correction: Patent Agent Exam Rules Amended

Correction: I hadn't read Sub-Rule (2), but an alert well-wisher of the blog has just pointed out my blunder. The amended post reads as follows:

In a gazette notification dated September 25, 2012, the Government of India has notified the amendment to the Patent Rules which apply to Patent Agent Examination. The Sub-rule (2) of Rule 110 has been amended to bring down the marks in viva from 100 to 50, thereby bringing down the total score to 250, as opposed to the earlier figure of 300.

The amended sub-rule (3) of Rule 110 reads as follows:

(3) A candidate shall be required to secure a minimum of fifty marks in Paper I and Paper II and shall be declared to have passed the examination only, if he obtains an aggregate of sixty percent of the total marks.

By the amendment, the effect of viva voce has been reduced.

I thank Ms.Disha Jeswani, the topper of the 2010 Patent Agent Examination, for sharing this information with me!

Does Section 66A of the Information Technology Act apply to Tweets?

Yesterday, one of our commentators brought to my attention the arrest of a businessman from Pondicherry, Mr.S.Ravi, for purportedly “offensive” tweets against the Union Home Minister, Mr.P.Chidambaram’s son, Mr.Karti Chidambaram. Section 66A of the Information Technology Act appears to have been invoked against Mr.Ravi.

In an earlier post, I had discussed in detail the scope of applicability of the provision drawing a distinction between “publication”, and “sending messages” through a communication device or a computer resource. The relevant portions of the post are as follows:

“66A.Punishment for sending offensive messages through communication service, etc.: Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

'Explanation.- For the purpose of this Section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

The issue is whether the provision applies to publication of defamatory or prohibited content on websites. I am inclined to say no for the following reasons:

1. I do not think publishing information on a website/portal falls within the definition of "sending". According to me, the provision's use of the word "send" along with "communications device" leaves very little room to include "publication".

2. It must be borne that although publication results in communication, there is no attempt on the part of the legislature to include publication within the meaning of "sending". 

3. Legislations are expected and presumed to be consistent in their use of terms. When the Act uses "publication" in one sense in select provisions (Section 67), but does not use "publication" in Section 66A, it means it does not intend to include mere publication by posting. In other words, although "sending" may result in publication, all publication cannot be equated to sending.

4. "Send" envisages a specific recipient(s). Also the provision refers to transmission and addressee/recipient of the message. This means the nature of the transmission is communicatory.

5. Also, it would be a stretch to argue that "communication/send" includes communication between the person who publishes the information and the system on which the information is published. That would amount to hair-splitting.

6. Further, even when the provision refers to use of computer resource, the legislature still makes no room for "publication" using the computer resource on a website. 

7. The limited circumstance when publication on website would amount to "send" is when information published on the portal is "sent" and "received" by subscribers of the site/blog/social networking site. Simply put, we'll have to distinguish between publication simpliciter on a website/an update on Twitter or Facebook and a message which is communicated.

8. Not just that, there's a reason why the IT Act or Section 66A does not provide for defamation by publication on a site. Section 499 of the IPC is broad enough to apply to defamation using any medium, therefore one does not need any provision under the IT Act for it. This applies to obscenity and the like offences as well.

9. Consequently, since the IPC already provides an offence for the end product of the communication i.e. defamation, my take is that Section 66A forbids use of the medium recognized under the IT Act as a medium for defamation. Specifically, it forbids use of the medium as a "conduit" for sending offensive messages. We must distinguish between a "conduit" and a "place/cyberspace". Section 66A alludes to the use of information technology as a channel of communication, as opposed to a space for publication.

10. The equivalent provision in the “real world” is Section 20 of the Indian Post Office Act, 1898, which reads as follows:

20. Transmission by post of anything indecent, etc., prohibited.—No person shall send by post--

(a) any indecent or obscene printing, painting, photograph, lithograph, engraving, book or card, or any other indecent or obscene article, or

(b) any postal article having thereon, or on the cover thereof, any words, marks or designs of an indecent, obscene, seditious, scurrilous, threatening or grossly offensive character.

The emphasis in the Post Office Act is on "transmission by post" of anything forbidden. Therefore, it follows that even Section 66A, which is the “e-equivalent” of Section 20 of the Post Office Act, also frowns upon use of the medium as a "communication medium", and not as a means of "simple publication."

As regards the application of Section 66A to tweets, to my mind, Twitter as a micro-blogging site is a platform for communication through publication, as opposed to communication by “sending messages”.

It must be borne that the purpose of the provision is to deter and frown upon messages sent via emails/SMS, which though amount to communication, do not necessarily translate to publication always (unless it is a group message). Even when offensive or insulting information is sent as a group message via emails or group texts, the provision’s scope is limited to the act of “sending messages”, with the issue of defamation being covered by Section 499 of the Indian Penal Code.

Therefore, I don’t think Section 66A applies to tweets or status updates on Facebook.

Comments and corrections are welcome! 

Snippet: Complaint filed against Yash Raj Films in the Competition Commission

Reportedly, actor-cum-producer Ajay Devgn, has filed a complaint against Yash Raj Films in the Competition Commission of India (CCI) for abusing its dominant position in Bollywood to prevent the release of Ajay’s film Son of Sardar on the eve of Diwali.

I’ll keep the readers updated on this development. I thank Ms.Sneha Jain for bringing this news report to my attention.

Snippet: USPTO Issues Non-Final Rejection of Apple’s Bounce-back Patent

In what must surely come as a rude-shock to Apple, the USPTO has issued a non-final rejection (available here) of Apple’s patent over the “bounce back/rubber band” feature which Apple successfully asserted against Samsung in the US.

The non-final rejection was issued in an ex parte re-examination of the patent US7469381. It has been reported that Samsung has brought this development to the notice of District Judge Lucy Koh who presided and continues to preside over the Apple-Samsung patent trial.

All 20 claims of the patent were invalidated, including claim 19 which claims the bounce-back feature.

I thank Ms.Jaya Bhatnagar for sharing this development with me.

Snippet: Delhi High Court Passes “John Doe” Order for the Movie “Chakravyuh”

On October 19, 2012, in a suit instituted by Eros International, C.S.(O.S.) 3163/2012, the Delhi High Court issued “John Doe” order against unknown defendants in relation to the film “Chakravyuh”, besides restraining named defendants such as Jyoti Cable Network from communicating, making available, distributing, duplicating, displaying, releasing, showing, exhibiting in the film in any manner without obtaining prior authorization/license from Eros International.

I thank Ms.Sneha Jain for bringing this development to my attention.

Snippet: Cipla Abandons its Patent Application

In an interesting development, Cipla has abandoned its patent application 733/MUMNP/2004 relating to “A combination of Azelastine and steroids” which had 50 claims.  The application was abandoned after a pre-grant opposition was filed against it. Here is the 8-page decision delivered on October 14, 2012 by the Mumbai Patent Office, of which 6 pages contain only the claims of the application.

Division Bench of High Court uses “Hyperbole” defense to Stay Injunction on the use of “Bata”

In what must certainly be one of the fastest appeals and decisions, in a 10-page judgment delivered on October 17, 2012, a Division Bench of the Delhi High Court has stayed (not set aside as I had incorrectly written) the order dated October 15, 2012 of the Learned Single Judge restraining the allegedly defamatory use of the trademark “Bata” in the song “Mehngai” in the movie “Chakravyuh”.

Following are the relevant excerpts from the decision of the DB:

“3. The issue raised in the appeal is of great public importance in the context of fundamental rights of the citizens to freely express themselves on social issues and thus we would be inclined to hear detailed submissions in the appeal but are constrained to pen this short order inasmuch as the cinematographic film in question is scheduled to be released in India on October 24, 2012.  Only two more working days remain as per the calendar of this Court before the Autumn recess commences.  The appellant seeks a stay of the operation of the impugned order.  

4. We are informed that as far as the international premier is concerned, the movie in question has already been launched with a premier show held in London on October 11, 2012 and that the offending lyrics in the song have been on the “You Tube” by way of promotionals since mid September 2012.

5. Since the appeal came up for hearing today in the forenoon and we do not have the requisite time to view the cinematographic film we take on record the statement made by the learned senior counsel appearing for the appellant as well as for the first respondent that the theme of the cinematographic film is the burning social issue of disparity in the distribution of wealth created in the nation : Fight of values and thought between the  “haves” and “have nots”.  

We are informed that the textual setting of the cinematographic film reflects a class struggle between the State,  which is perceived  by a section of the society to be capitalist oriented, vis-à-vis those who believe that  the social philosophy of the State should be of a kind which facilitates a fair distribution of the wealth created i.e. meets the need of all and the greed of none.  It is this esoteric thematic setting which finds an exoteric expression in the movie which shows to the viewer the struggle between the Maoists and the State.

13. Mr.Sandeep Sethi, learned senior counsel appearing for the appellant urges that notwithstanding four business houses being named in the song, the understanding of the song would not be with reference to a particular house but to a class which propagates the ideology of industrialization. And, brings out a call to those who propagate the ideology of socialism to unite and fight.

Following are the operative portions of the order:

19. The movie raises a burning social issue which we find is a matter of public debate on the streets and the press.  The struggle between the “haves” and  the  “have nots”.  The struggle for political power and the control over the philosophy of the State.  

20. Would the traditional legal principles evolved by Courts on the subject of rhetorical language or hyperbole be sufficient guidance for Judges to resolve issues when expressions are used with respect to social issues?  Is a question which needs to be seriously considered and answered.  

This is the reason why we are deferring hearing but penning our thoughts as aforesaid to bring out the richness in the public debate and especially in the modern societies where contemporary entities compete in the interdependent industrialized world and perhaps in this competition the individual organized industry of the common man renders him incapable of fighting an organized industrial establishment. 

To wit : When a prosperous person goes into depression and commits or attempts to commit suicide, what else is the phenomenon other than the individual organized industry falling apart against the onslaught of modernization.

21. Seen with the viewpoint as herein above, we do not prima facie find that in its contextual setting, viewed and heard as a whole, the song is derogatory or defamatory of the House of Bata.  Four leading and well-known industrial houses have been named and the statement naming them is prima-facie not likely to be taken literally by the viewer/listener.  

22. Deferring further hearing of the appeal till November 07, 2012, the operation of the impugned order is directed to be stayed.

The rational appears to be that given the backdrop of the story, use of the names of popular business houses is a reference to capitalism, and not a targeted assault on the entities per se.

Considering that a good section of the audience is not capable of making such a nuanced distinction, I am not sure I agree with the rationale. Also, would the logic of the Court’s decision apply even to public individuals who enjoy a clean reputation?...