POTENCY OF LIFE

(Column on Theme: Expression and Social Change published in 2008 (1), Ad Vitam, Bangalore)

Having been an avid fan of literature, I cannot resist the urge to talk about this most wonderful form of expression. It is needless to say that time and again this form of expression has proved beyond doubt, that it is one of the most effective tools in bringing about social change. Besides being a popular art form, literature has always been a mirror to society, often standing up for what is right and criticizing what is wrong. One of my personal favorites amongst such insightful literature is perhaps George Orwell’s ‘Animal Farm’, where the author humanizes the animals in the farm and depicts the farm itself as a microcosm of humanity. The book depicts a wonderful bouquet of characters, each signifying a particular segment of society and presents them in an engaging parody of life as he sees it. In doing so the author gives his reader much to mull over and makes reading fiction a stimulating and thought provoking exercise. Many such examples exist, of which this book is but one. Literature has also often been more than thought provoking. There have been instances in history when literature has spoken out to defend itself . One of the most eloquent of these is probably the ‘Areopagiticia’, a speech by John Milton, arguing against the Licensing Order of 1643, which instituted pre-publication censorship and was seen by many as a curtailment of the freedom of speech . Milton a known supporter of the parliament made a forceful argument against the order which has since been considered and quoted as a classical text in defense of the freedom of speech. In his arguments, Milton notes that censorship has never been a part of Greek and Roman society and uses a number of biblical and classical references to further strengthen his stand. Even though Milton’s arguments were made in an entirely different context in comparison with our own modern notions of the freedom of speech, one cannot help but marvel at the ingenuity of his expression. To quote an oft quoted extract, “For books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them.” As we begin this small endeavor to nurture our thoughts and express them in the way we best know how, we can only hope that what we write contains even a little ‘potency of life’ in them to make a difference, if not to society, at least to ourselves.

Interdisciplinary Approach towards Traditional Disciplines – The Challenges and the Perspectives

(This article was published in 2008 (1), Ad Vitam, Bangalore)

When the whole tedious process of education begins; it begins as one common pursuit of knowledge. Then comes a point in time where this pursuit branches out into various disciplines or faculties. The time to make a choice; to choose one path which would lead each towards his own destiny, until such time as he may chose to tread it. However, as the more inclined amongst us reach out further than the rest, or as the more adventurous decide to step away from the beaten track, ironically, boundaries between different disciplines begin to fade. Some issues bear certain complexities that cannot be provided a complete perspective with the traditional methodology of focusing on a single discipline. If interdisciplinary relationships are allowed to foster these relationships might go a long way in promoting a critical dialogue between such disciplines and brood innovative issues of commonality that are beyond the resources of individual disciplines alone.

It follows logically that incorporating an interdisciplinary approach would result in a reduction in the number of issues being viewed from the traditional disciplinary perspective. However, incorporating such an approach is not without its own share of problems. Primarily it is a problem involving a loss of disciplinary depth resulting in a distortion of the systematic approach towards certain logic, facts and presumptions inherent in every discipline. Therefore it goes without saying that incorporating an interdisciplinary approach must not completely replace the traditional disciplinary approach. The attempt should rather be to retain, at least in essence, the mental models, cognitive maps and educational frameworks of such traditional disciplines. Another related concern is about the language. Every discipline has a distinct, discipline-specific vocabulary. It is important to ensure that every new methodology based on an interdisciplinary approach, where students are encouraged to achieve breadth as well as depth, require the language of disparate disciplines to be explicitly taught.

It is also noteworthy to observe that every student usually seeks to study a discipline in which he/she believes to have natural talent. While on the one hand students who have inculcated a narrow approach towards the study of their respective disciplines may find it hard to digest a cross-disciplinary or interdisciplinary approach, the same may benefit students who have broader interests. It is perhaps interesting to note that an illustrative example towards laying emphasis on this issue is the integrated five year LLB program available in most Universities across India. This program incorporates the study of various law and non- law subjects simultaneously as part of the same graduate program, wherein students are exposed to a composite, yet comprehensive syllabi that seeks to provide a wide perspective towards inculcating a deeper understanding of the law and the legal system.

In such courses and elsewhere an increasing number of faculty are now involved in working with interdisciplinary settings like these. The challenge from their perspective is to identify how pedagogical approaches can facilitate the ability to integrate the varied methods, systems and approaches that all such disciplines have to offer. The biggest challenge to such faculty is perhaps the democratization and internationalization of higher education, which warrants the acknowledgment of not only a multi-disciplinary but also a multi- cultural approach towards pedagogy. The incorporation of any such interdisciplinary approach to a program means that, for various reasons, students may be inclined to focus on subjects towards which they would not otherwise be inclined. It is therefore most important to introduce a comprehensive system of retaining an equitable academic orientation towards each of the disciplines which are addressed therein. As an issue of prime importance it is needless to say that any purposeful and directed interdisciplinary work by such faculty requires an appropriate system of rewards, promotion, funding, grants and recognition.

It is perhaps a paradox of our times that every new approach under the auspices of existing system is met with cynical views which seem to indicate a certain inherent aversion towards the new and the untested. Innovation is and has proved to be the key to success, nay survival in a modern liberalized economy. The same is true not only for businesses, but for every sphere of human activity. The present is a time for achievers and there is probably no better way to achieve than to dare to be different. Education is one such area which demands innovation and the same can only be achieved through focused leadership and an orientation towards change. Most of these modern approaches to education are the products of such creative endeavor and demands encouragement rather than skepticism.

The Evolution of Patent Law

(Paper Presented at the Two day seminar on “Perspectives in Intellectual Property Rights”, in Hubli)

The industrial era, one of the most important periods in the history of humankind has made us appreciate the importance of science and technology. The realization that technology could be translated into commercial gains resulted in a surge of investments into research and development. The primary concern however, was the protection against unauthorized exploitation, of the technology so developed. This concern was the reason behind the emergence of Intellectual Property law and its implications over the commercial aspects of industrial property, by protecting, through law, the fruits of intellectual endeavor.

As man embarked on a spree of profit making activity, he began to look for newer and better demand for his goods and services. New vistas opened up with the advent of globalization wherein, the whole world was seen as an enormous market place. This new phenomenon sought to operate beyond the barriers of territorial limitations. Wherefore conventional and national legal systems were unable to regulate this phenomenon, which meant that the intellectual property laws of one country could not assure the protection of a person’s intellectual asset elsewhere. This led to the unification of various legal systems into exploring newer avenues for legal regulation. Consequential thereto, Intellectual Property Law is today seen as one of the most important factors affecting international trade. However, it is not an entirely new branch of law. On the contrary, it is considerably well evolved in terms of conceptual subject matter, regulatory mechanisms and remedial measures. Barring a few stray events[i], the earliest stimulus in this branch of law can be traced back to the 15^th century. Since then Intellectual Property Law has evolved into its current manifestation over a period of about 500 years of recent human activity.

The law relating to patents, which is an integral part of Intellectual Property Law, is also one of the earliest of all Intellectual Property Rights. For the sake of convenience, the evolution of patent law may be divided into three phases based on the extent of its application over different periods in history. The first phase wherein Intellectual Property law emerged and was developed under individual legal systems may be called as the territorial phase. The law then made a gradual transition into the international phase through exponential escalation in the form of international treaties and agreements. This phase ends with the emergence of the global phase, marked by the celebrated TRIPS agreement[ii].

I - The Territorial Phase

The earliest form of patents, beginning in 1552[iii], was the system of granting ‘literae patentes’ to inventors by the monarch. Roughly translated these meant letters of patent or open letters. These letters granting monopoly were usually open letters addressed to no one in particular, affixed with the royal seal as proof of the rights granted to the entitled. In most of the cases these letters were granted for the reason of influencing trade or when the patent was granted in return to payment of taxes. However, with passage of time the monarchy began a trend of issuing patents for its own benefit and for the benefit of officers and friends of the Court[iv]. Reform began during the reign of Queen Elizabeth I when Francis Bacon commented that the Queen would grant patents for any invention that she deemed useful to the country. In an effort to curb further abuses of power, Parliament, in 1624, passed the English Statute of Monopolies, which outlawed all royally sanctioned monopolies[v].

The concept of ownership of ideas and the legal sanctions to such ownership was first recognized during early renaissance. The earliest references to a patent can be traced back to this period when a form of patents called ‘proto patents’ were being issued. According to this system a manufacturer could be directed by the state authority to manufacture a certain commodity, in return for exclusive rights over the production of such commodity for a particular period of time.

The evolution of Intellectual Property as a law may well have begun in 1474 when the Venetians came up with a system for protecting inventions. However the first known statutory law on patents is the Statute of Monopolies passed in 1624[vi] in the United Kingdom. This law took away all monopolies other than the ones that were granted in case of a ‘true and first inventor’ for a ‘manufacturing process’. The first American law on patents was passed in the year 1790 and the first French law in 1791.

The first known patent ever, was granted to John of Utynam in the year 1449 by King Henry VI for manufacturing stained glass, for a period of 20 years. In return, he was required to teach this method of making stained glass to his countrymen[vii]. In the United States of America the USPTO in its history of about two centuries has granted about 5 million patents including to illustrious people like Thomas Alva Edison and Mark Twain and many big American corporations[viii], many of which are large, powerful companies still in existence. Examples of such landmark patents include Colt's revolver patents[ix]; Otis' elevator patent[x]; Yale's lock patent[xi]; and Eastman's camera patent[xii]. However the first ever patent in the US was granted to Samuel Hopkins for inventing a new method and apparatus to create pot ash and pearl ash[xiii]. The early 19^th century marks the end of the territorial phase. By this time most of the scientifically developed countries of those times had a system of Intellectual Property protection through their individual national laws.

Evolution of Patent Law under National Legal Systems

I – United States of America

The Constitution of the United States of America in its Intellectual Property Law Clause[xiv] enshrines that, "Congress shall have the Power... to promote the Progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The language of the Intellectual Property Clause vaguely defines the government's role in protecting the citizens' "exclusive Right" to their intellectual property. The Congress has passed several Patent Acts in early 18^th century following the ratification of the Constitution[xv]. These acts include the Patent Act of 1790, the Patent Act of 1793, and the Patent Act of 1836[xvi]. The Patent act of 1836 established the United States Patent and Trademark Office, better known through its acronym of USPTO. During the 20^th century development in the law took place due to the inter-relation between the antitrust law and the patent system, specifically during the Roosevelt administration in the 1930’s. Much development did not take place for a number of years since then as a result of the economic depression and the Second World War. However the since the days of the Reagan administration patent law has seen exponential growth. For instance, in the 1980’s computer software was not patentable because it was a mathematical algorithm and hence it was interpreted as natural phenomenon. But, gradually the patenting of a few types of software like those embedded in a chip were allowed and over the passage of time now virtually any type of software may be patented provided it fulfills the primary conditions on novelty, industrial applicability and the incorporation of an inventive step.

II - United Kingdom

United Kingdom has the longest continuous patent tradition in the world. Its origins can be traced back to the 15th century, when the Crown started making specific grants of privilege to manufacturers and traders. Such grants were signified by ‘literae patentes’, open letters marked with the King's Great Seal. The earliest known English patent for invention was granted by Henry VI to John of Utynam in 1449. The patent gave John a 20-year monopoly for a method of making stained glass, required for the windows of Eton College that had not been previously known in England[xvii]. In 1624 the Statute of Monopolies was enacted which took away all the monopolies except in the case of ‘true and first inventor’ and for a ‘manufacturing process’. This was followed by a period of 200 years with very little government regulation. In early 18^th century under Queen Anne the officers of the state discharged the functions of the monarch including the grant of patents. During this period an inventor was required to deposit a description of his invention with such officers of the state for grant of patent which was later evolved into the concept of submitting a specification. The great exhibition in 1851 resulted in the demand for better patent laws. This resulted in the enactment of the Patent Law Amendment Act in 1852 which established the Patents Office. This law was successful in simplifying the procedure of obtaining a patent. The Act of 1902 brought about a new era in patent protection. It also prescribed a system of investigating the novelty of an invention. The current law in place in the United Kingdom is the Patent Act of 1977.

III - China

Patent law in China originated in the early 19^th century. The first Chinese patent law was the ‘Charter of Rewards on Invigoration of Industry and Art’ passed in the year 1889. After the advent of communism in China and the establishment of the People’s Republic of China in 1949, ‘Provisional Regulations on The Protection of The Invention Rights’ was framed to encourage inventions. During the Cultural Revolution, the primitive patent system was abolished only to be revived again for the purpose of encouraging foreign investments. In 1984 The Patent Laws of The People’s Republic of China was adopted and was amended in the year 1992 in order to harmonize it with the international law. China became a party to the Paris Convention in 1984.

IV - India

Indian patent law has evolved for a period of about 150 years. The first Indian law on patents was passed in the year 1856 and received the assent of the Governor General on the 28^th of February 1856. This law was replaced by the new law passed in 1959 which was in turn repealed by the Inventions and Designs Act of 1888. The Indian Patents and Designs Act which came into force in 1911 repealed the earlier enactments. This law was further amended in the year 1930.

After Independence the government felt the need for a new patent law and appointed various committees for suggesting changes to the Indian Patent law. However, the suggestions of the expert committee headed by Justice Rajagopal Ayyangar were incorporated in the Patents Bill 1965. This bill lapsed due to dissolution of Lok Sabha. It was then referred to the Joint Committee of Parliament and after careful considerations, was re-presented in the Lok Sabha in 1966. The Patents Bill eventually culminated in the passing of The Patents Act, 1970. This Act has recently been amended by The Patents (Amendment) Act of 2002. This act is supplemented by The Biological Diversity Act of 2002 and the Protection of Plant Varieties and Farmer’s Right Act of 2001.

II – The International Phase

The later half of the 19^th century was a period of realization to most scientifically developed countries. They began to understand that since most inventions were protected within the boundaries of their respective countries only, the inventors were vulnerable against unauthorized usage and marketing of their inventions outside their countries. This situation was sought to be remedied through international treaties and agreements between many countries. Many bilateral treaties were entered into. This was, however highly inadequate.

In the year 1873 a world industrial fair was to be held in Venice. The United States of America was extremely apprehensive over participating in this fair. The key concern according to them was that, as the United States was technologically more advanced, people in Vienna would get an unfair advantage without any kind of benefit to the Scientists of the United States. Similar concerns had also been raised by Prince Albert in the United Kingdom. However, it was the German engineer Karl Piper who persuaded the Government of Austria to organize an ‘International Congress for Patent Reforms’ at the same time as the fair in 1873. Thereafter the congress met again in Paris in the year 1878 and 1880. Pursuant thereto, the ‘Paris international Convention for the protection of industrial property’ acquired the assent of 11 countries in the year 1883[xviii] and came into effect on the 7^th of July 1884[xix]. Within the span of 25 years, most of the technologically advanced countries had become signatories to the convention. This convention known simply as the Paris Convention was made with the objectives of;

i. Securing legal protection to inventions, designs, trademarks and trade names

ii. Promoting uniformity and harmonization by abolishing the element of nationalism in this area.

iii. Rationalization of the procedural requirements for protection of patents.

After this the Paris Convention has been revised from time to time primarily at Brussels in 1900, Washington D.C. in 1911, The Hague in 1925, and London in 1934, Lisbon in 1958 and at Stockholm in 1967[xx]. This convention is considered as one of the pillars of International Intellectual Property System[xxi]. Though the primary objectives of the convention remained unachieved the most important contribution of the convention was the introduction of the minimum standards which had to be adhered to by the member countries by modifying their existing municipal law.

Other important treaties of this phase:

i. The UPOV[xxii] convention which protects the rights of Plant Breeders in the year1961.

ii. The Patent Co-operation Treaty in 1970, an agreement, as the name suggests, for international co-operation in the field of patents[xxiii].

iii. The Strasbourg Agreement of 1971 made to overcome the difficulties caused by using diverse national patent classification systems[xxiv].

iv. The European Patent Convention of 1973 and the Budapest Treaty of 1977[xxv].

Currently the Word Intellectual Property Organization[xxvi] (WIPO) is one of the specialized agencies of the United Nations (UN) system of organizations. The “Convention Establishing the Word Intellectual Property Organization” was signed at Stockholm n 1967 and entered into force n 1970. However, the organs of WIPO go back to 1883 and 1886, with the adoption of the Paris Convention and the Berne Convention respectively. Both of these conventions provided for the establishment of international secretariats. There were two secretariats (one for industrial property, one for copyright) for the administration of the two conventions, but in 1893 the two secretariats united to form WIPO[xxvii].

III - The Global Phase

In the final decade of the 20^th century the international phase of Intellectual Property Law gradually evolved into a global phenomenon. This phase begins with the culmination of the Uruguay round of talks on 15^th December 1993, which resulted in the formation of the WTO agreement adopted on 15^th April 1994. The World Trade Organization came into being on 1^st January 1995, along with the TRIPS agreement[xxviii]. A pre existing condition of the WTO was that, any country that became a member of the WTO was obliged to apply the TRIPS agreement. Wherefore the 145 member countries became signatories to the TRIPS agreement. This agreement seeks to harmonize the municipal laws of all member countries by prescribing minimum standards in all aspects of Intellectual Property Law. The developing countries were given a period of 10 years ending on the 1^st of January 2005 for the incorporation of the minimum standards. Most countries including have made all the necessary changes to their municipal laws and whereby we now embark towards the administration of Intellectual Property Law on a global scale.

---

[i] Early Chinese Empire had a well developed Copyright law as early as in the 11^th Century.

[ii] The Agreement on Trade Related Intellectual Property Rights came into effect on 1st January 1995.

[iii]A History of the United States Patent Office By: Jason O. Watson

[iv] Dobyns, pg. 8

[v]A History of the United States Patent Office By: Jason O. Watson

[vi] id

[vii] http://www.patent.gov.uk

[viii] A History of the United States Patent Office By: Jason O. Watson

[ix] U.S. Patent Nos. X9430 and 1,304, 1839

[x] U.S. Patent No. 31,128, 1861

[xi] U.S. Patent No. 31,278, 1861

[xii] U.S. Patent No. 388,850, 1888

[xiii] Samuel Hopkins later went on to be the first person to get a patent in Canada also and was honored by the legislature of Québec.

[xiv] Article 1, Section 8, Clause 8

[xv] The Constitution of America was ratified on the 21^st June 1788.

[xvi] A History of the United States Patent Office By: Jason O. Watson

[xvii] http://www.patent.gov.uk

[xviii] Simultaneously the Berne International Convention for The Protection of Copyright and Related Rights was also entered into in the year 1883

[xix] P. 241 World Intellectual Property Law Handbook: Policy, Law and Use. WIPO publication No.489 (E), 2004

[xx] P. 242 World Intellectual Property Law Handbook: Policy, Law and Use. WIPO publication No.489 (E), 2004

[xxi] http://www.aful.org/wws/arc/patents/2003-01/msg00069.html

[xxii] UPOV is the French acronym of the International Law Union for Protection of Vegetable Obtaining.

[xxiii] P. 277 World Intellectual Property Law Handbook: Policy, Law and Use. WIPO publication No.489 (E), 2004

[xxiv] http://www.hpo.hu/Magyar/gl/enszo.html

[xxv] The Deposit Treaty

[xxvi] As on 2004 the WIPO has 180 member countries.

[xxvii] P. 4 World Intellectual Property Law Handbook: Policy, Law and Use. WIPO publication No.489 (E), 2004

[xxviii] http://www.wipo.int