September 2020

Artificial Intelligence and Patent Law

Introduction:

Artificial Intelligence. Never have two words fanned the flames of curiosity of a generation of individuals since the birth of the Technological era. Artificial Intelligence, as the term itself suggests, refers to the constellation of technologies that enable machines to act with a level of higher intelligence emulating the human capabilities of sense, comprehension, computation and processed action[1]. Given the great innovative leap offered by Artificial Intelligence, it is rather surprising to hear about there being very few / virtually no laws regarding working, definition, boundaries and patenting of the same. In this Article, we shall deal with the contentious relation of Artificial Intelligence and Patent Law.

What is Artificial Intelligence?

Artificial Intelligence as a concept has been prevalent for centuries. Since the time of the Ancient Greeks and Romans when an “automaton” showcasing human tendencies was discussed to the era of explosion in Science innovation and fiction of the late 19^th century early 20^th century. However, the term Artificial Intelligence was first mentioned in the now landmark 1956 conference at Dartmouth College. It was here that the leading minds of America in the technological fields came to discuss, put forward and deliberate on Artificial Intelligence and its role in those times. Renowned British mathematician and cryptographer Alan Turing was one of the earliest proponents of Artificial Intelligence, even coming up with a test known as “Turing Test” to determine whether the test subject was human or Artificial Intelligence. Despite the human race having conceptualised the possibility of Artificial Intelligence ages ago, we still haven’t been able to properly define the exact boundaries of the term. This has been both a boon and a curse. It is a boon for it helps us grow and innovate every day with utmost freedom. It is a curse however as well for there lies no regulation or protection under the modern laws for the same, as seen specially in developing and under developed countries.

Patenting of Artificial Intelligence and Machine Learning:

If we are to momentarily don the hat of historians, we will notice a batch of interesting points in time period of the modern era. This is specially seen in the last century wherein the term “Patent” and “Intellectual Property” has gained significant traction. The time gap between the next great leap in the field of technology has begun to shrink rapidly. This can be seen especially in the area of Artificial Intelligence and Machine learning. Both these areas have seen one of the fastest growths, specifically in regards to their learning and use in developing nations in Asia and Africa. However, to protect such innovations, we have seen an advent in the areas of Patent Law, specifically in developed regions of the world. We can see the difference in development of patent protection of Artificial Intelligence as follows:

United States of America:

The United States of America is one of the leading developers in the field of Artificial Intelligence innovation and creation. Title 35 of the United States Code, Subject 101 (35 USC § 101) deals with the question of patentability. The wide scope offered was seen as a manner to boost business and technological growth. However, the Supreme Court of the United States (SCOTUS) in the landmark judgement of Alice Corporation Private Limited V/s CLS Bank International stated that patent claims directed towards subject matters pertaining to functions performed by any person showcasing an ordinary mental process or by a human being using a pen and paper and without showing any significant growth in the requisite “inventive step” would be denied. The two steps of Alice, despite being primarily for software, have been applied to Artificial Intelligence as well.

The above test was applied in the Blue Spike LLC v. Google Inc. and has subsequently lead to increased polarisation in the critical analysis of the Alice judgement. One of the biggest criticisms against the Alice judgement has been its oversimplification in deciding whether a particular subject must be patented or not. The two step process while seemingly made to ease the patent litigation only caused more confusion for it could be interpreted differently by separate courts. Moreover, the terms “software” and “Artificial Intelligence” are in no manner to be construed to mean the same merely because both rely on computer language and algorithmic functions. Artificial Intelligence is far more inherently complex in nature as compared to everyday software and thus must be analysed and determined on a case to case basis.

European Union:

The European Patent Office (EPO) is one of the first Patent Authorities of the world to delve extensively in the field of Artificial Intelligence and Deep learning. We see this in the guidelines regarding guidelines for Artificial Intelligence and machine learning. The EPO is one of the few offices to actively attempt to differentiate between mere algorithmic mathematical modules of everyday use and that used in Artificial Intelligence which is based on computational methods and algorithms regarding classification, clustering, regression and dimensionally reduction, such as neural networks, genetic algorithms and support vector machines among others. Guideline 3.3.1 is specific only to Artificial Intelligence and machine learning and lays down relatively modern grounds for patentability of Artificial Intelligence. In 2018, the EPO held its first conference on the patenting of Artificial Intelligence.

India:

In India the term Artificial Intelligence is yet to be fully comprehended and looked upon. Its use and bare purpose is known only to the upper echelons of urban India and there hasn’t been a pan India move to educate and inculcate the very use, purpose and nature of Artificial Intelligence in all strata of society. This limitation of knowledge has been extremely painful in growth and innovation in the field of Artificial Intelligence. However, with the advent of technology and internet connection to the rural masses there lies a hope that advancements in Artificial Intelligence will not remain mere conjectures of science fiction but rather everyday use.

The Patents Act, 1970 under Section 3(k) bars algorithms and programmes per say with no specification regarding the area of Artificial Intelligence and machine learning. Even the Computer Related inventions (CRI), 2017 does not delve extensively in the direction of Artificial Intelligence. The NITI Aayog in a Discussion Paper has bemoaned the lack of patent laws regarding Artificial Intelligence as a separate identity and not one limited to software, programs and algorithms. Currently, attempts to patent Artificial Intelligence are done in the same manner as seen with software in India, by attaching it to some form of novel hardware and put them up for patenting as one entity. However, should India truly feel the urgency to be in the race of technological innovation, they must update the patenting and patent examination grounds as seen in the European Union.

Conclusion:

The world of Artificial Intelligence is the world of the future. As human kind grows increasingly reliant on Artificial Intelligence, there is an ardent need for the laws of innovation and protection such as Patent Law to increase the specificity of manner, definition and boundaries of the same. Artificial Intelligence, while having the same base material as software, algorithms and software must be held as a different entity. To equate Algorithms, programmes and software of everyday use as seen under Patents Act, 1970 with Artificial Intelligence is akin to likening protozoa and amoeba with that of early human beings. There lies an extensive amount of difference between the two. Mayhap it is time the law recognised the same.

SHREYAS SHETTY

BALLB-5th Year

ILS LAW COLLEGE, PUNE

[1] Page 12, NITI Aayog Discussion Paper on “National Strategy on Artificial Intelligence”

MESSI: The Brand

Lionel Messi is not just a name; he is one of the greatest of all time in the football world. The value he brings to a brand is clearly unmatchable. He has almost 166 million followers on one of the most popular social media platform i.e., Instagram. Lionel Messi in the past few years has gained an immense popularity in all age groups. Whenever someone hears his name they want to talk about him. Last week Lionel Messi was in the news but not for his game but for the trademark of his sports brand “MESSI.”

In the year 2011 Messi started his own sports goods brand in his own name “MESSI.” He made an application to the European Union Office for Intellectual Property (EUIPO) in the year 2011. However, his original application was challenged by the Spanish cycle brand “MASSI” claiming that the popular footballer’s brand will create confusion in the minds of general public as both the brands are phonetically and visually similar. EUIPO after hearing contentions ruled against the footballer that the brand “MASSI” and “MESSI” is visually and phonetically similar and the application was rejected.

However, the decision of EUIPO was challenged in the European Union’s second highest court i.e., European Union General Court and they ruled the decision in the favor of the footballer stating that the footballer is a well-known person at a global level and people will associate “MESSI” with Lionel Messi only. The court also said that “Mr Messi is, in fact, a well-known public figure who can be seen on television and who is regularly discussed on television or on the radio.”

Now the question arises whether a surname can be trademarked or not. The US court answered this question and held that before applying for the surname as a trademark the surname must have acquired distinctiveness. It means that the surname must have gained popularity amongst the general public and people shouldn’t confuse it with other brand.

It is a popular opinion that the richest and the powerful persons only applies for the trademark of their name or surname. But if someone’s name is violating the provisions of the Trademarks Act then the most powerful and the richest person will also not get their name trademarked.

India’s take on the Grey Market in the Fashion Industry

With increase in demand for luxury brands in India, the fashion market is becoming a paradise for knockoffs, counterfeits, and the grey market goods. Grey market is a parallel market where authentic brands are sold at lower prices by unauthorised sellers. In other words, genuine brands are bought from one market and imported and sold in another market without the consent of the owner of the brand. Grey market goods are readily available at discounted price online, questioning the brand exclusivity. Their growing prevalence in the Indian fashion market cause serious impediments in the growth of the fashion industry. In India, many online stores already sold apparels and accessories from companies like Abercrombie and Fitch, Aeropostale and so on even before these companies had opened stores in India. [1]

Awareness and collaboration of the brands with local authorities are helping to tackle this pricky situation efficiently. Courts and other related authorities are gaining the required expertise and knowledge to develop a robust IP jurisprudence to tackle and help brands in trademark infringement. Christian Louboutin v. Nakul Bajaj & Ors[2] is a notable case where the Delhi High Court granted protection to Cristian Louboutin stating that the brand would suffer grave loss if injunction was not granted. The plaintiff filed a suit against the defendant stating that the defendant sold the plaintiff’s luxury products on their website by misrepresenting them to be affiliated or sponsored or approved by the plaintiff. The plaintiff claimed that there was a infringement of the trademark and end of the opulence and exclusivity enjoyed by the plaintiff on it’s products because of their display on the defendant’s mark. Courts understand the need to protect the brand with alacrity and rapidly gaining confidence and expertise in doing so.

Hermès v. Da Milano[3] is another example where the courts showed their expertise in dealing with grey market goods and protecting the plaintiff against trademark infringement. The court granted preliminary injection to Da Milano from selling handbags that resemble the Hermès’s Birkin Bag. However, later the two parties settled the case outside the court where the plaintiff allowed the defendant to sell their handbags without the legally protected element i.e. the ornamental or decorative part of the plaintiff’s handbag viz a horizontal belt and flap having three protruding lobes.

The Indian government and courts are working to curb the problem if not eliminate it. Though the courts are ready to tackle problem of counterfeits and the grey market goods, it is important for the brand to be vigilant about the unauthorised trade of their products. One cannot simply ignore the fact that sometimes these high-end luxury brands themselves directly sell their good to the grey market players or turn a blind eye to such sales to boost their sale revenue. This is done to improve short term results and unload the excess stock. The proprietors of these well-known brands should avoid such practice for short term results and be more prompt in acting against the grey market players and counterfeits to avoid dilution of their well-known marks.

[1] Business Standard, https://www.business-standard.com/article/companies/india-s-online-grey-market-for-us-clothing-brands-112080400101_1.html 25th January, 2013

[2] Christian Louboutin SAS v. Nakul Bajaj & Ors., CS (COMM) 344/2018

[3] Ranjan Narula, Mayur Varshney, ‘Countering Counterfeits’ , 25^th December 2017 https://www.legaleraonline.com/article-detail?newsname=countering-counterfeits

5 legal remedies to look out for in case of Copyright Infringement

The Copyrights subsists in various subject-matter such as Artistic works, Literary works, Cinematograph works, Musical works, Sound recording, etc. According to the Incentive theory, the copyright grants a bundle of exclusive right to the owner of the work in order to incentivize, exploit and reap the fruits of his labour and investment in such work for the purpose of earning the livelihood. However, any unauthorised use of these copyrighted work by a third party or use without an appropriate license may give rise to the case of copyright infringement subject to the provisions of Fair use principle and other statutory provisions. Thus the Copyright Act of 1957 provides for several remedies which can be availed by the owner/s of the rights or any such right as the case may be.

Interlocutory Injunction

It’s the most relevant remedy which can be availed by an aggrieved copyright owner in case of wanting for an immediate and effective relief in order to prevent further infringement activities and further damage to the business of the copyright owner.

John Doe Order

Issuance of a John Doe order is a relevant and appropriate remedy which is to be sought by a Copyright owner who claims to seek injunction against unknown persons who have been allegedly involved in copyright infringements.

Damages to goodwill and reputation

In addition to usual compensatory damages, damages to goodwill and reputation are very much relevant on account of undermining the plaintiff’s reputation and goodwill in the market as a result of unauthorised counterfeiting of the concerned copyrighted work.

Punitive Damage

Punitive damages have been considered more and more relevant with the increasing activities relating to infringements. These damages can be claimed alongside the compensatory damages and are prayed before the courts in order to deter, punish and educate and strengthening the law enforcement.

Criminal Action

Also referred to as criminal remedy, it holds a distinct and independent relevance. In some cases, such as copyright piracy issues, civil remedies might not be sufficient to deter, hence the criminal remedies are availed simultaneously to stop further infringement and punish the infringer.

IPR: LOOPHOLE IN FASHION LAW?

Fashion, since its inception, has been a part of our social life, depicting the social status of the person. The fashion industry, generating billions of dollars each year, majorly focuses on creativity and intellect. As the industry prides itself on its tremendous growth, it is becoming a breeding ground for unauthorized and rampant copying of designs. Designers and fashion houses are becoming more and more aware of their IP rights to protect their design and business. However, with knockoffs and counterfeits taking the front seat, it is evident that the IP rights provide only limited legal backing to the fashion industry.

Copyright law is the most obvious kind of intellectual property law to protect creative works like books, paintings, sculptors, and song lyrics but not useful items like clothes and accessories. Copyright does not provide a monopoly over useful items like clothing. In other words, it protects the creative elements (like pictorial, graphical, and structural work) of the design of clothes, accessories, or footwear and not the functional elements. Also, copyright law protects fashion designs provided they are not registered under the designs act, but the protection expires if the design is reproduced more than 50 times.

Other than copyrights, trademark law protects the name and logo of the fashion brand which provides much-needed protection to businesses. However, the trademark only protects the name and not the designs of the apparel, footwear, or accessories. While trade dress protection under trademark law could provide the desired protection to underlying designs or shape size and overall look of the product, it is not a well-developed area of law in India. Further, to be protected by trade dress protection, the product must either have acquired distinctiveness or inherent distinctiveness as in the case of Christian Louboutin SAS Vs Mr. Pawan Kumar & Ors.[1] Since the criteria for protection is so high, only high end and well-known brands can be protected under this area of intellectual property rights.

Further, while considering the fashion industry, patent protection does not come immediately come to the mind. Nonetheless, patent protection can be granted to the technology used to reach a particular product. For instance, Novozymes, a Danish company has patented the technology used to attain stonewash jeans.[2] But, patent protection can be very expensive and time-consuming thus not a feasible option for fashion houses since the industry is based on quick-changing trends and seasonal wear. Moreover, in India, design patent protection is unavailable.

These individual loopholes when taken together, aid in fashion design piracy and copying. Fast fashion retailers take advantage of these loopholes to generate billions of dollars each year and are rarely sued for the same. The case Ritika Apparels v BIBA is an example of how big well-established fashion houses like BIBA take advantage of these loopholes and escape liability. The smaller fashion houses and designers suffer due to the existing loopholes in IPR and lack of funds to receive the same. The most feasible solution would be to introduce a custom made fashion law to reduce the plight of fashion houses and designers.

[1] Christian Louboutin SAS v. Mr. Pawan Kumar & Ors, High Court of Delhi, CS (COMM) No. 714/2016

[2] WIPO Magazine, ‘IP and Business: intellectual property in fashion industry’ Issue 3/2005

Software, Algorithms, Programs and the Difference between them

INTRODUCTION:

Since the inception of the digital age, there have been a plethora of terms that have been used by people all over the world. Software, algorithm and program are terms which are often used synonymously without any due regard to their actual difference. While this may be forgiven from the view of a common man, as lawyers we have no such defense. The profession of law prides itself in being extremely particular about the interpretation of key terms and in the current lock-down era, never has the need to make a distinction between these three terms been higher. In this Article, we shall understand the definition of these terms and what is the difference between the three.

DEFINITIONS:

The terms software, algorithm and program are defined as follows:

Software:

Software can be generally defined as “[Software] a set of instructions, data or programs used to operate computers and execute certain specific tasks”[1]. Software is seen as the secondary component of a computer resource, with the main one being hardware. It is however far more than a mere secondary component. The scope of software is diverse and covers a world of design, operating systems, web browsing and applications of any kind used in practically all areas of life. From the moment we wake to the moment we sleep we interact at least once with software in one form or the other.

The IT Act does not venture into given us a clear definition of the term “software” despite making numerous references to it in the definitions of key terms such as “Computer[2]”, “Computer Resource[3]” “Information[4]” and “Secure System[5]”, which gives the perception that the drafters of the Act wished for the definition to be the same as used in common parlance. The term “Source Code” under the IT Act is often held to be referring to a software as well, particularly under Section 65 wherein the term has been defined as an Explanation:

“[Computer Source Code] means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.”

Algorithm:

The term algorithm is used to refer to a procedure wherein a mathematical method is utilised so as to calculate and device a certain procedure for the carrying out of a particular task. Algorithms have been prevalent in human society prior to their application to computer resources as a purely mathematical concept. It is this mathematical background of algorithms which make it difficult for it to avail of Intellectual Property protection. The Patents Act, 1970 goes as far as to prohibit granting of inventions in regards to algorithms specifically[6]. However, recent Computer Related Inventions Guidelines[7] have eased up this requirement and opened the possibility of gaining IP Protection for algorithms.

Program:

At the very start, one must know that the terms programme and program are used synonymously. The term “Program” is of American descent while the term “Programme” is of British and French decent. The term is used generally to refer to “a set of instructions that can be put into a computer in order to make it perform an operation”[8] .When referring to the term in a technical manner, the word “program” is used. The term has been defined under the Indian Copyright Act as follows:

“[Computer Programme] means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result”[9]

DIFFERENCE BETWEEN ALGORITHM, SOFTWARE AND PROGRAM:

The basic difference between an algorithm, program and software is the hierarchy. A set of algorithms together when put in a particular programming language formulate a program which when combined with other programs along with data creates a software. Following are other differences between the three terms:

Subject	Software	Program	Algorithm
General Definition	A set of programs used along with data for the purposes of execution of an application.	A set of instructions written in a programming language for the purposes of a particular task.	A mathematical method used to device a procedure for carrying out a task.
Nature	General	Specific	Abstract
Users	General Public usually	Developer generally	Developer
Size	Generally large files, ranging between Mega Bytes (Mb) and Above.	Generally Kilo Bytes (Kb) to Mega Bytes(Mb)	If saved on an online application, generally Kilo Bytes (Kb).
Features	Multiple features to provide great accessibility	Limited features	Bare steps for dealing with task at hand.
Structure	Generally Complex, able to deal with multiple inputs at a time depending on design.	Generally simple and focussed on dealing with one particular task.	Depending on task, can be simple or complex. However, higher the complexity, higher the mathematical explanation behind each step.
Language	Multiple Computer Languages are used in order to make sure it functions properly.	Depending on the particular task the program is being designed for.	Does not use any particular computer language.
IP Protection	Under Copyright Act, 1957	Under Copyright Act, 1957 Excluded per se under Section 3(k) of Patents Act, 1970	Not granted under Section 3(k) of the Patents Act, 1970 Subsequently relaxations under CRI Guidelines.

CONCLUSION:

Members of the legal fraternity often tend to use technical terms in the manner they are used in general parlance and do not dive deep into the definitions of the same unless specifically demanded by the Court or in the course of the suit. With the advent of technology in the daily lives of the general public, the need to understand the difference between the three grows exponentially. This is clearly seen especially when a lawyer is dealing with the intellectual property protection under copyright or patent laws.

For example, exceptions such as that under Section 3 (k) under the Patent Act, 1970 specify algorithms and computer programs per se cannot be granted patents. However, an individual can get his software patent protected if he can reasonably showcase that the software is a part of novel hardware.

Another aspect for obtaining IP protection with respect to algorithms and computer programs can be observed from global perspective. Some jurisdictions such as the United States may allow certain aspects of these computer programs and algorithms to be patented provided that the use of such computer program has certain level of control over a machine or a technical process and consequently resulting into some physical effects.

Therefore, in order to advise and assist the client in getting the best IP protection, it is key that the lawyer themselves first clearly differentiate between the three terms.

SHREYAS SHETTY

BALLB-5th Year

ILS LAW COLLEGE, PUNE

[1] “https://searchapparchitecture.techtarget.com/definition/software”

[2] Section 2 (1) (i), Information Technology Act, 2000

[3] Ibid, Section 2 (1)(k)

[4] Ibid, Section 2(1)(v)

[5] Ibid, Section 2(1)(ze)

[6] Section 3(k), Patents Act, 1970

[7]“http://www.ipindia.nic.in/writereaddata/Portal/IPOGuidelinesManuals/1_86_1_Revised__Guidelines_for_Examination_of_Computer-related_Inventions_CRI__.pdf”

[8] “https://dictionary.cambridge.org/dictionary/english/program”

[9] Section 2 (ffc), Indian Copyright Act, 1957

WHEN DAN BILZERIAN PLAYS BLIND – ONLINE POKER IN INDIA

Online Poker world has brought a new avenue in India when a globally renowned online poker gaming brand associated to, so called, American actor and international Instagram celebrity, Dan Bilzerian recently announced its presence in Indian market. BLITZPOKER – Official Poker Room of Dan Bilzerian is an American based Poker site which offers top poker games like Texas Holdem, Open Face Chinese Poker and Omaha Poker. The announcements to begin its operation were made during the ongoing lock-down. However, the trend for carrying a business around ‘real money’ card games in lieu of Legal ambiguity in Indian territories have already emboldened gaming companies like Adda52 and Spartan Poker to offer such gaming services.

Though the Supreme Court of India, in a 1967 judgment, ruled that rummy and other cards based games involving money are considered to be the games of skill and can be legally played in clubs, it didn’t clarify on the use of stake money. Thereafter, various high courts in India have given conflicting verdicts around rummy – and the use of money while playing it. That apart, several state-level anti-gambling laws have added more knots to the legal tangle.

The rising interest and involvement of users in these online platform based gambling would certainly add up to some interesting and evolving judicial interpretations around the globally accepted notion which recognises Poker as to be a game requiring high level of intellect and mental prowess.

Legality apart, these online gambling portals are usually required to spend a lot of efforts to strengthen their gaming technology and other legal compliances with respect to allied regulations in order to attract more users. They have to keep updating technology that takes care of game security, payments, game integrity (anti-collusion and pattern tracking programs) and unpredictable shuffle algorithms.