Category Archives: News & Updates

Education In India (Problems and Solutions)

Introduction

Education is essential for the development of intellect and knowledge of a person as well as for the growth of economy of a nation. Enhancement in the education sector directly results in advancement in the economy of a nation, as it enhances the skill-set of the workforce which can make better use of the available technology. However, to the our utter dismay, currently, the Indian education system faces a number of setbacks, the primary one being lack of standardisation in both school and university/college level.

To understand the situation better, we should first enlist the problems that circumscribe the Education Sector in India.

Problems in the current system

  • The existence of different boards that govern education in schools results in divergent syllabus in the same grade. For example, the course material prescribed by Indian Certificate of Secondary Education (ICSE board) for 9th grade mathematics contains a chapter called commercial mathematics which is not prescribed in the books of Central Board of Secondary Education (CBSE board). Apart from these two, there are various state boards with different subjects and syllabus which in general are relatively lower in standards than the CBSE and ICSE’s. A standardised curriculum for students of same age is imperative, but there is no such standardisation due to the existence of these different governing bodies.

    Even in colleges, due to lack of a regulatory body and autonomy given to institutions, the course varies significantly. A student of law in one college is taught the law of torts and jurisprudence in the first year, whereas in some other university, these subjects are taught in the later years of the course.

    Homogeneity in curriculum is essential because a course material needs to be made by carefully evaluating the mental ability of a child of the said age, and such evaluation must apply to all children of the same age, there must be no disparity, otherwise this may hamper the development of the child and impact the process of learning which in the long run will hamper the India’s growth.

  • Unregulated Autonomy (Deemed Universities)

    Unregulated and unfettered autonomy has been given to universities and colleges by the University Grants Commission. The universities recognised by UGC have very limited set of rules and regulations governing them and are majorly unaccountable for their conduct.

    Some universities are not even UGC approved but are deemed or to-be-deemed universities accredited by the Department of Higher Education of the Ministry of Human Resource Development.

    Such difference in accreditation by different bodies and minimal set of rules governing the institutions gives these institutions unregulated discretion in deciding their mandates, and changes the standard of education offered by these institutes. Moreover, the independence of these institutes renders no higher authority for the redressal of the grievances of students.

  • Qualification and Status of the Educators

    One of the major problems that arise due to non regulation of educational institutions is that of qualification and status of educators. Since the institutions are free to decide upon the qualifications required for the post of a teacher of a particular subject, they may not give regard to the credentials of an applicant and the post may be given to a non deserving candidate due to connections. This is arbitrary and also a compromise with the quality of education.

    Further, since there is no binding mandate for the salary of teachers, it completely depends on the discretion of the institution, and therefore, in most places, the educators are underpaid. This directly and severely affects the standard of education as best brains don’t opt for teaching.

    The global ranking of Indian institutes, of both the school and university level is far below satisfactory. In 2018, India did not even participate in the Programme for International Student Assessment (PISA) organised by OECD for evaluation of education systems across the world. According to the Quacquarelli Symonds (QS) World University rankings 2018, IIT Bombay which ranked 162nd is the highest ranking Indian University on the list.[1]

    Different medium of teaching available to school students of different states poses a problem later as the university level education is majorly imparted in English, so a working knowledge of English language is necessary, but studying in vernacular language medium hampers this to a certain extent and puts the students in a disadvantage. By this statement , I do not want to mean in any manner that one should not learn his Vernacular language, however special attention should be given in learning basic English, Hindi. Further, local institutes also display parochialism, narrow-mindedness making them incompatible with other institutes.

  • Fees

    The lack of funds or improper distribution mechanism thereof is a major reason for the sorry state of education in India. There is no body which is solely responsible for collection and distribution and proper utilisation of funds. The problem increases even more in rural areas which are largely out of reach of the administration of any governing body.

    This also results in a chasm between fees to be paid by students in different institutions. The fees of a primary school student may vary from a few thousands per year to few lakhs per annum. To bridge this gap, there needs to be a set of rules governing the fees being charge by these institutions and to ensure that such fees is not exorbitant.

Vyapam Scam – The Epitome

The Vyapam scam was a humongous corruption scam that came in light in the year 2013 in the state of Madhya Pradesh. It involved a number of universities, colleges and government job placement offices and included fixing results of professional examinations, among other incidents of cheating, bribery etc. This scam proved that corruption in India has grown from an anomaly to a way of life; it is so deep-rooted that it can be referred to as a culture. No decision of a court or no scam has questioned the system as much as the Vyapam scam. So it is imperative to include this in the study of education system of India.

  • The Aftermath

    In the aftermath of this scam, in order to uproot the widespread corruption and in national interest, the courts took stringent measures and a plethora of doctors who took admission in their college by paying bribes were punished heavily, as the court cancelled their degree and put them behind bars, pushing their future into dark. As their actions constituted acts of deceit, it was deemed to be unacceptable. Apart from students, the police arrested many people involved, including bureaucrats and politicians, and other members heading the institutions which accepted the bribe and admitted undeserving students. Fingers were also pointed to the Ex-Chief Minister of Madhya Pradesh Shivraj Singh Chauhan.

  • The Mistake

    While on one hand the court was more harsh upon the students and lesser on others bureaucrats and politicians involved, it failed to take into consideration the doctors who although entered the college by giving bribe to the Management of the college, however, they  did well and earned their degree without any fraudulent means. They are qualified doctors. Such students did not deserve as harsh a punishment as they were given. Instead, their degrees could be put to some use for the society.

  • The Reformative Theory of Criminology

    The court should’ve given these doctors a mandatory term of serving the society by providing their services in rural places which suffer from a constant deficit of medical assistance. The court rightly applied the deterrence theory of criminal justice to the administrators involved in the scam, but to the students, the implications should have been little onerous. It is understandable that to prevent more such scams in future and to maintain the quality of education, it was necessary to lay down a bottom line, but the justice would have been truly achieved when the society would have ultimately benefitted through the Reformative theory of Criminology.

    According to this theory, the object of punishment should be the reform of the criminal, through the method of individualization. It is based on the humanistic principle that even if an offender commits a crime, he does not cease to be a human being. He may have committed a crime under circumstances which might never occur again which fits in the present case to the fullest. Therefore an effort should be made to reform him during the period of his incarceration. The object of punishment should be to bring about the moral reform of the offender. While awarding punishment the judge should study the character and age of the offender, his early breeding, his education and environment, the circumstances under which he committed the offence, the object with which he committed the offence and other factors. The object of doing so is to acquaint the judge with the exact nature of the circumstances so that he may give a punishment which suits the circumstances. After all they were not habitual criminal offenders (which the society should be afraid off )and were mere students who in the greed of getting admission into a good college paid bribe to the college .The court here was harsher on the students while more lenient on the administrators, while it should have been the other way around. It was the College management, administrators, politicians and the ones in power who enticed these students to pay the bribe.

Mentioning the problems will be of no use unless and until the solutions are proposed.

Potential solutions to the problems

    • Laying down the Basic Structure of Education

      The first and the paramount step towards solving most problems with the current education system of India is that the legislature must enact a legislation which lays down certain basic regulations that have to be followed by all educational institutions across the country. This legislation must aim at bringing uniformity in education provided by various institutions.

    • Powerful Central Body

      A powerful central body governing all schools should be set up. This body should have power to make by laws and regulations applicable to all schools. A proper syllabus based on the abilities of a child of a particular age must be made, which applies uniformly. All other boards like state boards, international boards etc must be abolished and a standard medium with standard curriculum must be set in place. A standard medium should not result in neglect of local languages; they should be recognised, but to bring all students on equal level, they must be taught in one medium of language. But it should be borne in mind that creating a central governing body does not necessarily imply that the schools will not have any amount of autonomy vested in them. The limits of an institution shall be defined in a fashion similar to memorandum of association of a company. They are accredited by the governing body but will be free to make decisions for the smooth functioning of the institution within the bounds of powers granted to them.

      Such body will be solely responsible for collection and management of funds given by central and state governments. The biggest problem of unrecognised institutions like madarsas that claim to be educators, etc can also be solved as for a degree to be recognised, the institution imparting such degree must be accredited with the said national body.

    • The International Inspiration

      More incites on the legislation can be taken from education systems of other countries like Poland, USA and Japan. In these countries, there is no distinction in the curriculums and the schools are on the same level.

      Similarly, the UGC must govern all universities and colleges, and all universities must be accredited by it. There must be no titles such as deemed or to-be-deemed universities and the power to give accreditation shall be vested only with UGC and no other authority. The curriculum for a particular course must be strictly laid down and followed. To ensure implementation of all guidelines, every university should have personnel presiding over its actions.

Conclusion

With the low standard of educational institutions, India still has a far way to go. The problems are multiple and too huge to be solved in a short span of time. A number of factors have to be employed simultaneously to improve the system. The unified system as proposed here in this article will allow equal growth of all students. It will also lead to better governance. It will also reduce parochialism and discrimination. Further, with equal opportunities given to every child irrespective of his caste, class or social background, the government will get an opportunity to review the reservation system and its need in the society. The government needs to take careful consideration of all facets before enacting any legislation, but ultimately, the unified system will benefit the students. This will further advance the global standing of Indian institutions and bring them at par with the leading institutions of the world.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development  and Nayanikaa Shukla – Intern, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com or at www.linkedin.com/in/shubhamborkar.

References:

[1]https://www.topuniversities.com/university-rankings/world-university-rankings/2018

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Consumer Protection Bill, 2018 ( Highlights and Analysis)

A Critical Approach to the Proposed Consumer Protection Bill

With the growth of internet and advent of a global economy, the world has become one big marketplace and all of us are ‘consumers’ in some sense or the other. The definition of the term “consumer” has also shifted drastically and we have entered into an era of ‘fast consumership’ where each moment we need to enter into new contractual relationships with varied sellers for the provision of goods or services. This has resulted in the creation of a cluster of rights and liabilities between the consumer and the sellers and has also created the need to protect the interests of both the parties simultaneously. Where consumers enter into such relationships every second, the chances of the being duped by the sellers has grown exponentially, where the seller might out rightly deny the consumer his rights or, circumvent the provisions of law to pocket undue gains at the expense of the consumer.

To prevent this, the Indian government had enacted the Consumer Protection Act, 1986 in order to protect the rights and interests of the consumer but as time has flown by, the varieties of rights of consumers have evolved, types and modes of businesses have changed and the volume of transactions has increased manifold. In order to gauge this change, the regulations have to change too, in furtherance of which the Parliament first proposed the bill in 2015 and then amended the same on recommendations of a Parliament Standing committee and has moved the Consumer Protection Bill, 2018 which presently has been passed by the Lok Sabha and is awaiting assent of the Rajya Sabha. The provisions of the new bill have been called everything from visionary to complacent and in this article

We have tried to analyse the bill and provide our take on it.

The following are the highlights of the new consumer protection bill compared to the old one;

Central Consumer Protection Authority

i) The bill has proposed to establish a Central Consumer Protection Authority(CCPA) to specifically address issues concerning unfair trade practices including misleading advertisements by persons and facilitating the protection of Consumer rights. Following this, a complaint may be filed for issues that are violative of interests of ‘Consumers as a class’ thereby introducing the concept of ‘class action suits’, which means persons having common grievances against the same party and seeking similar reliefs against such defaulting party may do so together, thus giving consumers an edge compared to the old act.

Consumer protection Councils

The Bill has further proposed Consumer protection Councils will be setup at the district state and national level, as advisory bodies.

Dispute Redressal Commissions

ii) It has been also proposed that Consumer Dispute Redressal Commissions will be set up at the District, State and national levels for adjudicating consumer complains. Appeals from District and State Commissions will be heard at the next level and from the national Commissions by the Supreme court.

Product Liability

iii) The new bill defines ‘Product Liability’ which was absent in the previous act. By this definition, the manufacturers, sellers and service providers would now be liable for the damages caused to a consumer because of deficient products or services[1]. Such liability may arise if the product has a manufacturing defect, design defect, deviated from manufacturing specifications, not conformed to express warranties or otherwise failed to provide adequate information for the consumers’ benefits. This would result in the product or service providers to be extra cautious and employing stricter quality checks which is definitely a pro consumer approach

Misleading Advertisements

iv) The bill has further provided the definition of misleading advertisements and defined it as an advertisement which falsely describes a product or service or gives false guarantees that mislead consumers or convey representations which may constitute unfair trade practices or deliberately conceals important information. The bill has provided for penal provisions[2] including fine of upto Rs. 10 lakhs and imprisonment of upto five years which is a first as the previous act did not provide for penal consequences. This is expected to positively compel both the endorsers and advertisers to employ stricter standards while advertising and to a great extent curb the consumers from being misled to beliefs of whiter teeth in two weeks or four shades of fairness in a month.

Mediation Centres at Central and State level

v) The bill also proposes that if while adjudicating a case, a forum anticipates that a settlement may be reached between the parties by way of mediation, it may do so under the provisions of the bill, rather than adjudicating itself. For achieving this objective the Central and State governments may establish mediation centres which shall be attached to the Consumer forums[3].

vi) The Bill also defines contracts are “unfair”, if they significantly affect the right of the consumers.

vii) Finally, the Bill has proposed to expand the territorial jurisdiction of the consumer forum to include ‘place where aggrieved consumer resides or works for gain’ thereby increasing access of the consumer to the forum in case of dispute and greater efficiency in filing of complaints against the provider of products or services and has also increased the pecuniary jurisdiction of the district, state and national consumer forum in order to relieve the pendency of cases burdened on the National forum.

Conclusively, the Bill has managed to check all the right boxes and has received warm response from academics, legal fraternity and the civic society. However, there remain certain defects that escape  the sight but are equally necessary to be clarified in order to give the Bill a meaningful shape.

Issues

The first issue is that of the clash that might occur within the ‘to be established CCPA’ and the prevailing consumer forums in cases of a certain class of consumers or subject matter which may be taken up by both the bodies. There must have been a prescribed hierarchy or creation of separate class in order to avoid such conflict. Further, Section 99 of the Bill directs the CCPA to act according to the directions of the central government thereby restricting its autonomy.

Secondly, in case of product liability, it can be anticipated that there may be frivolous claims solely on the basis of discrepancy in designs, even when it results in no actual damage to the consumer or is done in order to improve functionality.

Thirdly, in case of misleading advertisements where even the endorsers may be held liable, the Bill has provided merely one straitjacketed punishment for different classes of endorsers where they may vary in terms of remunerations as well as social reach. Also creating a confusion, the Section 79 of the IT Act, 2000 defines ‘intermediary’ as any person who on behalf of another person stores or transmits that message or provides any service with respect to that message and includes the telecom service providers, internet service providers, web-hosting service providers, search engines, online-payment sites, online auction sites, online marketplaces and cyber cafes and such intermediaries are not liable for any third party information, data or communication which consequently gives e-commerce platforms a glorious defence against selling fake or sub standard products and then claiming the excuse of being ‘mere intermediaries’ and evading strict liability under the product liability clause. The new bill has been unable to address this because Section 100 of the new bill clearly states that ‘the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force’ and the IT Act, 2000 being a special act, shall continue to remain in force.

Fourthly, in case of Consumer protection Councils that are to be setup at the district state and national level which will be headed by the Ministers as advisory bodies, However it is not clear from the bill that the minister will advise to whom and in what capacity.

Fifthly, the bill has proposed to empower the Central government to appoint remove and prescribe conditions of service for members of District, State and National Consumer Disputes Redressal Commissions, however the bill has failed to specify the composition of the board and whether a judicial member will be onboard or not. Composition is left completely to the discretion Central government; there are chances of independence of the commission being jeopardized.

The Consumer Protection Bill, 2018 certainly envisions to update the consumer protection policy according to the needs of the present day consumer and the prevailing business atmosphere and it must be applauded for the futuristic approach it has taken. The changes that have been proposed will most certainly ensure a safer and fairer market for the consumers to interact with the providers, but to what extent, only time will tell. Until then certain discrepancies and confusions such as conflict of jurisdiction between parallel judicial bodies, independence of regulators, and other such issues that have been highlighted must be addressed in order to ensure a smooth sail on a seemingly long journey, the Bill has to make.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development  and Asish Mishra – Intern, at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com or at www.linkedin.com/in/shubhamborkar.

References:

[1] Section 2(34) of the Bill

[2] Section 89 of the Bill

[3] Section74 (1)&(2)

Tips for Patent Agent Examination Viva Voice

Congratulations to all those who have cleared the exams! You are just a step away from becoming a patent agent. But the Viva Voice by no means is to be taken lightly. Beyond the knowledge of patent law that you’ve already mastered, crossing this bridge requires effective communication skills, a calm temperament & aptly understanding the expectations of the panel. While you have to travel the distance yourself, a little support always comes handy! Here are a few quick tips to help you sail through the Viva Voce smoothly:

1. The Viva is about letting the panel see that you are fit to walk the shoes of a patent agent, and do justice to that bare act in your hand, which basically means:

  1. You can understand and interpret the law properly
  2. Once understood, you can explain it to the client effectively
  3. You can represent the client’s best interests and make proper submissions/arguments in doing so

2. This would require that you can think quick, are pleasant and clear in your communication, and most importantly honest and trustworthy, which means if you don’t know the answer, say You Don’t Know and will have to check the provisions. The last thing they want to see is a person misguiding an applicant when he/she is unsure but rather upfront about not knowing and checking before he/she advises the client.

3. Be prepared with an answer to the following most common questions:

  1. What is your background? Tell us more about yourself
    Keep a short introduction ready with basic details of educational qualification and professional experience. Don’t try to give unnecessary details/ brag too much about your accolades/ take too many names of other people
  2. Why do you want to become a patent agent?
    Prepare an honest reply and communicate it with conviction
  3. What is the procedure for filing a patent?
    Prepare for explaining all scenarios – provisional application/ ordinary domestic application/ conventional application/ PCT National Phase application
    Learn the form and fees by heart and be ready to face cross questions on this
  4. What is the procedure of pre-grant and post-grant opposition?
    Be thorough with the timelines and grounds of opposition. Procedural differences between the two can also be asked
  5. Questions on Compulsory Licensing
    Along with the sections and rules, be prepared with a summary of Bayer vs Natco Compulsory Licensing Case

4. Effective communication is a key to success in Viva. Be mindful of the following:

  1. While it is important to sound confident, ensure that you are not overconfident and pompous
  2. When asked a question, politely ask them to repeat if you’ve not understood it properly
  3. While it is important to answer the question fully, stop if interrupted by the panel and continue only after they indicate.
  4. After finishing your answer, you may ask them whether you’ve addressed their question correctly

5. Practice the common questions once in a mock viva with your friends/ family members. Even if they don’t understand patent law, they can give you feedback on your communication style/ body language and the like, and you shall get a net practice before the actual one.

6. Last but not the least – Revise, Revise, Revise – the sections, rules, forms & fees

Ms. Prigya Arora delivered an enlightening session on Intellectual Property at the School of Planning and Architecture

School of Planning and Architecture, Delhi organized a half day workshop on 11th December 2018 to acquaint faculty and students with interesting domain of Intellectual Property Rights. The workshop aimed at introducing the participants with purpose and processes involved with protection of various forms intellectual properties while also exposing them to challenges that loom in the domain.

Among other distinguished speakers, Ms. Prigya Arora, Patent Associate, Khurana and Khurana Advocates and IP Attorneys, discussed various modes of intellectual property protection including copyrights, trademarks, patents and designs. She also explained the participants about legal provisions and process for protecting various intellectual properties in the discourse.

The workshop also witnessed other speakers who peddled their views on topics like the importance of  Intellectual Property Rights for educational institutions while explaining other concepts and challenges through certain case studies. In current era when there are vital inter-linkages and interdependence between various disciplines, such an initiative becomes all the more important.

Mr. Tarun Khurana (Founding Partner at Khurana & Khurana, Advocates and IP Attorneys) shared his views on various topics at Indian National Bar Association (INBA)

To mark the occasion of 69th Constitution Day of India the Indian National Bar Association (INBA) organized a special conference in Hotel Shangri-La Eros New Delhi which was attended by luminaries across of the Legal Fraternity , this conference also had a Award Ceremony which was blessed with the presence Hon’ble Justice Jayant Nath from Delhi High Court.

There were contemporary topics like E-commerce policy in India, Growth of Women Lawyers in IndiaInternational Investments and Sports Arbitration, that were discussed via panel discussions by the distinguished  luminaries of the fraternity . An important panel discussion was dedicated to Increasing role of Artificial Intelligence in our Day to Day lives and Legal and Moral debates around it.

The discussion initiated from how role of Artificial Intelligence is increasing every day from Mobile Phones to Cars to Cameras and Weapons. Discussion proceeded to discuss out the problems that would surface, one of the distinguished panelist Mr. Tarun Khurana, Partner at Khurana and Khurana Advocates and IP Attorneys dedicated a good ten minutes speech in explaining what all legal ambiguities and problems are going to arise, say problem of ownership (IPR)  in case of AI helping a person in doing an  invention or writing a book, problem of jurisdiction as AI is travelling beyond borders beyond countries, problem of liability in cases of AI accidents and many other issues.

After an hour long discussion it was churned out that a specific dedicated legislation with respect to Artificial Intelligence is the need of the hour, IPR laws is India also need to be amended mutatis mutandis to accommodate AI.

Khurana & Khurana (K&K) quoted among best picks in ‘The Indian Legal Digital Presence Report-2018’ by Legal Desire

We are living in an age where everything is progressively heading towards Digitalization. Whether we talk about shopping, banking, booking tickets or ordering food, we are reliant on a bridge that connects our world to digital world, our Smart Phone. We spend majority of our time on Smart Phone that makes it a gateway for inception to our mind. Digital presence for an organization has become a primary mode of publicity. Digital platforms act as the two way mode of communication between the organization and its audience.

Observing the trends in the field of digitization, various initiatives have been taken from the Indian Judiciary System. Now one can easily access daily cause lists, orders and judgments from Courts. The Supreme Court and Ministry of Law and Justice had last year launched eCourts Services App to enable people, litigants, lawyers, police and others to access information about court case anytime and anywhere.

Legal Desire, a publisher of legal insights & news, has recently conducted an extensive study for analyzing the digital presence of 300+ Indian Law Firms. Parameters used for conducting out this study were Social Media Presence, Website, Mobile Friendly, Incorporation of SSL certificates, BCI Disclaimer, Newsletter, Team, Research, and Expertise. Khurana and Khurana (K&K), Advocates and IP Attorneys has been quoted among best picks in ‘The Indian Legal Digital Presence Report-2018‘. K&K has been also acknowledged with “Best Insights”.

Author: Ankit Kumar, Patent Associate at Khurana & Khurana, Advocates and IP Attorneys.

Conference At Chartered Institute Of Patent Attorneys (CIPA)

CIPA conference was organized at ITC Maurya in New Delhi on 15th November, 2018. The conference related to the Intellectual Property Rights and promoted IP practices in United Kingdom (UK), more particularly Patent, Trademark, Designs and Copyright. The delegates from UK shared their experiences and detailed the general practices followed for grant in UK. After the session got over around 5pm at ITC Maurya, all delegates were taken to British High Commissioner’s residence in New Delhi for one to one discussion accompanying drinks and snacks.

At the outset of the Conference, the Chairman, International Liaison Committee introduced the speakers, who were expert in various field of IP Laws. He further enlightened the delegates with highlighting that Chartered Institute of Patent Attorneys (CIPA) is agroup of over 2400 Chartered Patent Attorneys in UK qualified to act before European Patent Office (EPO).

The Chairman observed following points as to why the Indian law firms should choose UK IPO for filing applications:

  • Each year around 40,000 European patents applications are filed by the UK’s European patent attorneys, out of which nearly 90% are from overseas clients showing the international interest and scope in U.K.
  • UK Chartered Patent Attorneys are one fifth of currently practicing all European Patent Attorneys and they file almost one third of total European Patent applications.
  • IN EPO, it’s comparatively tuff to get through for computer program applications due to patentability objection thereby narrowing the chances of getting grant. Comparatively, UK law interprets the exclusion to patentability for computer programs broadly.
  • While many aspects of UK and European law will be affected by the UK’s withdrawal from the EU, patent work will continue unchanged.
  • Well qualified and experienced IP professionals in UK.
  • English being the language of communication makes interpretation and business easy.
  • Using the speedy procedures in UK for the grant, registration of rights and the resolution of disputes provide significant additional value by achieving early outcomes.
  • Highly advanced and sophisticated national IP environment.
  • Availability of competent, reputed and specialized judges (including their technical backgrounds), the consistency, reliability and ease of predicting decisions in other jurisdictions is another important feature.

Various other attorneys shared their experiences on Patent searching, novelty, inventive step to the objections faced during prosecution in comparison with EPO and US practices etc. Among other, the session regarding Artificial Intelligence (AI) by Mr. Saiful Khan was an eye opener about the present scenarios about upcoming automation world. He highlighted AI patents and the role that AI would play in day to day life. The use of AI would omnipresent in everything from home automation to transportation, communication, healthcare, education industries etc. He pointed on the need of developing an IP law that should focus on AI around the Globe. The UK Attorney’s covered almost all areas of technology from pharmaceutical, chemical, biotechnology, biopharma, biology, electrical, electronics, software, communication etc in Patents. Various case laws were discussed that made a mark in the history of UK Laws and IP practices.

CIPA also took a small session on Designs explaining the need of design registration, the common practices followed around different jurisdictions, process and timelines. The last session was a quick go through about trademark practices, procedure of filing and the timeline that need to be followed.

CIPA also conduct a get together for all the delegates at British High Commissioner’s residence which provided an opportunity to interact with the CIPA members and other delegates and exchange views on various issues relating to IP Laws. In such social event, speakers of CIPA, was startled to know the initiatives taken up by Indian Government on National Intellectual Property Rights policy, startup India initiative, Make in India and other such policies about promoting startups and small scale industries, had a direct impact on the increase in number of Patent filing in India.

The take away from CIPA session were the announcements made by WIPO delegate about:

  • India is leading the world in filing Information and Communication Technology (ICT) patent applications.
  • UK is at 4th position in WIPO list for filing software applications.
  • India has jumped 3 ranks up in WIPO list for filing patent applications around the world.

It was a wonderful opportunity and a great learning experience that will be cherished always and would like to be part of the same in future as well.

Khurana & Khurana, Advocates and IP Attorney ranked as “Tier 2” for IPR services in IP Ranking List published by Asian Legal Business

Khurana & Khurana’s pursuit for excellence continues as it celebrated 10 glorious years of service in 2018. It has been acknowledged many a times for its quick and effective services so far. K&K has again made its mark as a tier two law firm for Trademark/Copyright and Patent in offshore as well, according to IP rank list as published by Asian Legal Business (ALB). (For more details click here)

Khurana & Khurana has been one of the law firms to help India protect its IPR by providing Patent and trademark portfolio services, which includes Patent filing, Patent prosecution, Patent opposition, Trademark filing, Trademark prosecution, Trade opposition, IP enforcement as well as litigation.  This full service firm has, further contributed in improving India’s Patentability environment through filing a number of Patent applications surpassing more than 1200 applications in 2017, both domestic as well as Conventional filings, in the country.

                                                   tier2_image1

Khurana and Khurana has also carved a niche for itself by successfully representing a diverse portfolio of clients, ranging from start-ups to fortune 500 companies. K&K is pacing swiftly towards filing more number of Trademark applications with each passing year as highlighted in the diagram given below:

                                                   tier2_image2

Khurana & Khurana has its presence across the globe as its has offices in various places in India and in other countries namely USA, Bangladesh, Myanmar, Nepal, Vietnam, Sri Lanka and Malaysia. Moreover, with its diligent and sincere work, Khurana and Khurana has been able to engage ClienIP Ranking May 2018ts from diverse section of the world.  The figure below shows the Geographical split of K&K’s Client base:

                         tier2_image3          tier2_image4

As Khurana and Khurana climbs the ladder to success, such recognition by ALB, infuses a new zeal and passion to scale new challenges. Khurana and Khurana is happy to acquire a firm position in the realm of Intellectual Property and strives to achieve greater heights!

Impact of Aadhar Verdict

“This has been the longest hearing before the apex court, second only to the hearing in the Kesavananda Bharti case” – Attorney General K. K. Venugopal.”

End to an another landmark litigation, the Supreme Court of India on 26th September 2018 pronounced its judgment in a petition challenging the constitutional validity of Aadhar (Targeted Delivery of Financial and Other. Subsidies, Benefits and Services) Act, 2016 (“Aadhar”). The judgment was passed by the constitution bench comprising of 5 judges with 4:1 majority and a dissenting verdict of Justice Chandrachud. The Court held that Aadhar Act is not unconstitutional and it does not violate the privacy of an Individual. It removes the chances of duplicity and is a full proof of identity. Further it was held that Aadhar helps marginalized sections of the Society.

AFTER EFFECTS

Constitutional validity of Aadhar has been upheld but certain provisions have been erased and some will remain in changed form. Few important changes are:

  1. No longer mandatory to link Aadhar mobile sim cards or bank accounts.
  2. Relief from ‘harassment’ by banks and telecom companies.
  3. It is mandatory to link Aadhar with PAN for income tax purpose. The dissenting judgment of Justice Chandrachud had struck down Section 139AA of Income Tax Act which mandated linking of PAN with Aaadhar, was struck down but the majority decision has upheld Section 139AA.
  4. Aadhar linking is not mandatory for school admissions, private entities, digital wallets, eKYC, examination conducted by CBSE, UGC and NET.
  5. Aadhar is mandatory for availing government benefits and welfare schemes. This point has been severely criticized by human activists stating that it violates the fundamental right of food and basic necessities and poor people are hit the most, by this clause.
  6. Retention of Data for 5 years was found to be unconstitutional and retaining the data beyond the period of 6 months is impermissible.
  7. Parents consent is mandatory to enroll children under Aadhar scheme, who will have the choice of opting themselves out of the scheme, once they attain majority i.e. 18 years.
  8. Children cannot be denied benefits for lack of Aadhar cards.
  9. Section 47 of the Act relating to cognizance of the offense has been struck down, now Individuals can also file a case under the Aadhar Act.
  10. Section 33(2) of the Act has been struck down, which allowed identity and authentication data to be disclosed in the interest of national security on direction of an officer not below the rank of Joint Secretary to the Government of India
  11. Section 57 of the Act was held to be unconstitutional. Private companies cannot compulsorily demand Aadhar details of their customers.
  12. Court has directed the government to measures to ensure that illegal immigrants are not able to take benefit of Aadhar.

CONCERNS

Bypassing Rajya Sabha to pass the Aadhar Act as money bill, has come under severe criticism about the functioning of the government. Despite, the majority bench didn’t hold the Aadhar Act as unconstitutional. On the contrary, Justice Chandrachud has specifically held this act to be unconstitutional on this ground. Further, by striking down the Sections 33 and 57 of the Act, there is no doubt that right to privacy is an important factor but there is still a crowd over the fact as to what happens to the existing private details in the servers of the companies before the judgment. Data privacy issues arising with respect to Aadhar data has not been addressed. Not many have been satisfied with the verdict about Aadhar being mandatory for welfare schemes, in light of basic necessities such as ration being denied due to non-availability of Aadhar and several reports informed starvation deaths in Jharkhand, massive malnutrition and related deaths of children in Maharashtra, Madhya Pradesh, Chhattisgarh and tribal areas.

 

Author: Ms. Vatsala Singh, Litigation Associate at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at vatsala@khuranaandkhurana.com.

The Drone Policy 2018

Introduction

The Directorate General of Civil Aviation (the “DGCA“) released the much awaited National Drone Policy, 2018 version 1 (Drone Policy)[1] on 27th August 2018. The subject matter of the regulation is ‘Requirements for Operation of Civil Remotely Piloted Aircraft System (RPAS)’. The policy is set to come to effect from 1st December 2018. This regulation succeeds two other daft regulations that were issued by the DGCA in April 2016 and November 2017. Both these drafts were open to stakeholders for comments but they never got formalized into anything until now.  A task force called the drone task force has also been set up that will provide for further recommendations when needed and may even modify the current regulation or create new ones. The current article will try and make a detailed analysis of the Regulations.

Background

Before the draft regulations, drones were not allowed to be used in India due to lack of proper regulations and security concerns. For the first time in 2016, DGCA asked for recommendations but they were not formalised. Finally a year later in 2017, another draft regulations were released which have now been formalised. The Regulations provide a very detailed framework for licensing and other requirements for use and operation of drones in India. As stated under Regulation 1.3 ‘the Civil Aviation Requirements (CAR) is issued under the provisions of Rule 15A and Rule 133A of the Aircraft Rules, 1937 and lays down requirements for obtaining Unique Identification Number (UIN), Unmanned Aircraft Operator Permit (UAOP) and other operational requirements for civil Remotely Piloted Aircraft System (RPAS)’. The process through which all the initialisations, submissions of applications and clearances will take place will be an all-digital process. The process will be carried out through an online platform called Digital Sky. The Ministry of Aviation through a press release[2] called Digital Sky “first of its kind national Unmanned Traffic Management (UTM) platform that implements ‘no permission, no take-off’”.

Requirements and Eligibility

 According to the Drone Policy, every drone user will now have to register the owner of the drone, the drone that is being used and the person who is flying the drone. Permission will have to be taken from the authorities through the Digital Sky app before flying any drone and only after the permission is granted, the drones will be allowed to fly. To be eligible to fly the RPAs, a person has to be over 18 years of age, must have passed 10th exam in English and has undergone ground/ practical training as approved by DGCA. To make regulations more clear and manageable, the drones have been divided into five categories:

  1. Nano : Less than or equal to 250 grams.
  2. Micro : From 250 grams to 2kg.
  3. Small : From 2kg to 25kg.
  4. Medium : From 25kg to 150kg.
  5. Large : Greater than 150kg.

Every category of the drone will need to get the UAOP except for a few exceptions which are any Nano category flying below 50 feet in uncontrolled airspace / enclosed premises, Micro RPA operating below 200 feet (60 m) AGL in uncontrolled airspace /enclosed premises and RPA owned and operated by NTRO, ARC and Central Intelligence Agencies but except Nano, the other two have to intimate the police according to the provisions. This UAOP will be granted within 7 days and will be valid for 5 years after which one will have to renew it. But during renewal fresh security clearance will be required from Ministry of Home Affairs. The UAOP shall be non-transferable. The DGCA is mandated to grant UIN within two days of the receipt of the application with completed documents. Currently, foreigners are not eligible to fly drones in India and will have to lease RPAS to an Indian entity who in-turn will obtain Unique Identification Number (UIN) and UAOP from DGCA. Not everyone category has to obtain the UIN like:

  1. RPAs in the Nano category with intent to fly up to 50 feet above ground level (AGL)
  2. RPAs owned and operated by Government security agencies.

Restrictions

The regulations also state certain restrictions on the operation of such drones. Flying area has been divided into three zones:

  1. Red zones : It is a no-fly areas (which include regions close to airports, national borders and military bases);
  2. Yellow zones: Flying in this area will require approvals before flying,
  3. Green zones: They are unrestricted areas.

Flying drone upto 400 ft. AGL and visual line of sight are allowed. All operators, except for Nano drone operators, are required to file their flight plans at least 24 hours before their operations and also have to obtain clearances from the Indian Air Force, Air Traffic Control and the Flight Information Centre. Cancellation of any flight plan also has to be notified to proper authorities immediately.  Similarly, all drone operators except Nano, have inform the local police authorities in writing before commencing any type of operations. If a pilot is flying any drone in a controlled airspace, continuous contact has to be maintained with the Air Traffic Control. Specific areas have been laid down under Regulation 13 where flying of drones is restricted. Some of the areas are: Within a distance of 5 km from the perimeter of airports at Mumbai, Delhi, Chennai, Kolkata, Bengaluru and Hyderabad; Within 5 km radius from Vijay Chowk in Delhi. However, this is subject to any additional conditions/ restrictions imposed by local law enforcement agencies/authorities in view of the security; from a mobile platform such as a moving vehicle, ship or aircraft, etc. No person can act as a remote pilot for more than one drone operation at a time. A drone is also not permitted to discharge or drop substances, unless it has been specially permitted by the DGCA and such permission is mentioned in the UAOP. The Drone Regulations also state that no drone shall transport any hazardous material and animal or human payload.

Penalties

The UIN or UAOP issued by the DGCA may be suspended or cancelled in case of any violation of the provisions of the Drone Regulations. Falsifying any information or non-adherence with any provisions of the Regulations may also lea to penal actions under the Indian Penal Code.

The Aircraft Act, 1934 imposes a penalty of imprisonment for a term which may extend up to two years, or a fine which may extend up to INR 1 million (approximately USD 14,500), or with both, for anyone:

  1. who “wilfully flies any aircraft in such a manner as to cause danger to any person or to any property on land or water or in the air“; or
  2. who “wilfully fails to comply with any direction issued [by the DGCA] under section 5A” of the Aircraft Act, 1934.

The Aircraft Rules, 1937 also state that “the doing of any act prohibited by or under any rule, or failure to do any act required to be done by or under any rule, not specified elsewhere in this Schedule” shall constitute an offence punishable with imprisonment for a term not exceeding 3 months or with a fine not exceeding INR 100,000 (approximately USD 1,450) or with both.

Conclusion

Before the introduction of these Regulations, usage of drones was either prohibited or restricted by commercial users. The Drone Regulation was a much require and awaited regulation in India which has finally legalized usage of drones by private and commercial users. The regulation along with the FAQ’s[3] and Do’s and Don’ts released provide for quite a comprehensive data which cleared a lot of doubts and provided clarity to the people. The introduction of Digital Sky through which almost every step can be done online is also a very thoughtful and well managed technique. But getting approvals and clearances from so many authorities and following so many steps might prove to be cumbersome for many users who then might not use them. Even commercial users might not be totally happy with the regulations and they don’t allow for delivery of food/ other items, or to carry passengers. With so many online portals that could have made use of these drones on a large extent might be disheartened with this rule. Even restriction on foreigners from using drones directly in India and investing in them could prove to be a setback for the growth of the sector in India. But it is difficult to ascertain anything so early as the Regulations may get modified and changed in the future which might bring new changes that could provide relief to these players in the market. If the Regulation and rules are properly implemented then, these regulations might even boom the technological ecosystem of the country. However, irregularity and a weak policy may also prove to be a threat to security too.

Author: Nishka Tyagi, Legal Intern,  at  Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at pratistha@iiprd.com.

References:

[1] http://dgca.nic.in/cars/D3X-X1.pdf

[2] http://www.pib.nic.in/PressReleseDetail.aspx?PRID=1544087

[3]  http://dgca.nic.in/cars/RPS-FAQs.pdf