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SSrana Newsletter 2020 Issues 08

November 12, 2020

Patent Amendment Rules, 2020- comes into force!!

patentThe Ministry of Commerce and Industry (Department for Protection of Industry and Internal Trade) vide its notification dated October 19, 2020 released the Patents (Amendment) Rules, 2020

Digital Media including OTT Platforms under Purview of Ministry of I & B.

WIPOIn a recent move, the Ministry of Information and Broadcasting has brought all kinds of Digital/Online Media including Over the Top (OTT) Platforms under its ambit, according to the notification S.O. 4040(E) dated November 9, 2020,

ASCI’s Advisory on COVID-19 Related Claims in Advertisements.

CopyrightAdvertisement Standards Council of India (ASCI), a self-regulatory voluntary organization of the advertising industry on October 20, 2020 has issued an advisory concerning COVID-19 advertisements

Online Gaming Advertisements Guidelines ASCI.

CaptureIt has been recently reported by an Indian Daily, that ASCI (Advertisements Standards Council of India) may introduce guidelines to provide a streamlined regulatory framework to ascertain that online games involving real money are being offered in a responsible manner

Ordinance for Air Quality Management in Delhi NCR.

BombayAs the winters have started creeping in the North India, the declining mercury has led to an inversely proportional surge in a deadly mix of smoke and fog


Patent Amendment Rules, 2020- comes into force!!

patent

The Ministry of Commerce and Industry (Department for Protection of Industry and Internal Trade) vide its notification dated October 19, 2020 released the Patents (Amendment) Rules, 2020[1].Also read Patent Amendment Rules, 2019 comes into force

AMENDMENTS TO THE PATENT RULES

While the patent filing process has been made easier, following are the key highlights of the changes/substitutions brought about in the amended Patent Rules:

PRE-AMENDMENT POST-AMENDMENT COMMENTS
Rule 21

Filing of Priority Document

(1) Where the applicant in respect of an international application designating India has not complied with the requirements of paragraph (a) or paragraph (b) of rule 17.1 of the regulations under the Treaty, the applicant shall file with the patent office the priority document referred to in that rule before the expiration of the time limit referred to in sub-rule (4) of rule 20.

(2) Where priority document referred to in sub-rule (1) is not in the English language, an English translation thereof duly verified by the applicant or the person duly authorised by him shall be filed within the time limit specified in sub-rule (4) of rule 20.

(3) Where the applicant does not comply with the requirements of sub-rule (1) or sub-rule (2), the appropriate office shall invite the applicant to file the priority document or the translation thereof, as the case may be, within three months from the date of such invitation, and if the applicant fails to do so, the claim of the applicant for the priority shall be disregarded for the purposes of the Act.

 

Rule 21

Filing of Priority Document

(1) Where the applicant in respect of an international application designating India has not complied with the requirements of paragraphs (a), (b) or (b-bis) of rule 17.1 of the regulations under the Patent Cooperation Treaty, and subject to paragraph (d) of the said rule 17.1 of regulations under the Treaty, the applicant shall file the priority document referred to in that rule before the expiration of the time limit referred to in sub-rule (4) of rule 20 in the Patent Office.

(2) Where sub-paragraph (i) or sub-paragraph (ii) of paragraph (e) of rule 51bis.1 of the regulations under the Patent Cooperation Treaty is applicable, an English translation thereof duly verified by the applicant or the person duly authorised by him shall be filed within the time limit specified in sub-rule (4) of rule 20.

(3) Where the applicant does not comply with the requirements of sub-rule (1) or sub-rule (2), the Patent Office shall invite the applicant to file the priority document or the translation thereof, as the case may be, within three months from the date of such invitation, and if the applicant fails to do so, the claim of the applicant for the priority shall be disregarded for the purposes of the Act.

The amended Rule 21 has been harmonized to include PCT regulations. This provision now explicitly puts in writing what has already been in practice, i.e. submission of a copy of Form PCT/IB/304 at Indian Patent Office to suffice the requirement of filing a priority document. Although, the deadlines for filing priority documents and English translation of the documents remain unaltered.

 

 

 

 

 

 

 

 

 

 

 

 

 

Rule 131(b)

Form and manner in which statements required under section 146(2) to be furnished

(2) The statements referred to in sub-rule (1) shall be furnished in respect of every calendar year within three months of the end of each year.

 

Rule 131(b)

Form and manner in which statements required under section 146(2) to be furnished

(2) The statements referred to in sub-rule (1) shall be furnished once in respect of every financial year, starting from the financial year commencing immediately after the financial year in which the patent was granted, and shall be furnished within six months from the expiry of each such financial year.”

Earlier, statements on Form 27 were supposed to be furnished within three months of the end of each calendar year. Now, according to the amendment, statements on Form 27 shall be furnished within six months (rather than three months) from the expiry of each financial year (rather than calendar year). Thus, according to the new Rules, Form 27 for the previous financial year can be filed by 30th September of the subsequent financial year.
Form 27

Statement regarding the working of the patented invention on commercial scale in India

Separate Forms were to be filed in respect of multiple patents belonging to a single patentee, even when the patents were related to each other and their revenue could not be separately calculated.

Form 27

Statement regarding the working of the patented invention on commercial scale in India

A single commercial working statement (on Form 27) may be filed in respect of multiple patents, provided all of them are related patents, wherein the approximate revenue/value accrued from a particular (single) patented invention cannot be derived separately from the approximate revenue/value accrued from related patents, and all such patents are granted to the same patentee(s).

 

 

Instead of filing separate commercial working statements for each related patents (all belonging to a single patentee), now a single commercial working statement filed on Form 27 for said related patents would suffice the requirement.

Additional changes in Form 27

  • Earlier patentees were required to enter exact amount of revenue accrued, but now only APPROXIMATE value is sufficient.
  • Statement regarding public requirement met “partly/adequately/to the fullest extent” or not has now been done away with.
  • Country wise details of import are not required to be submitted now.

Details of licenses and sub-licenses granted are not required to be submitted now

 

 

The aforesaid legislative changes brought about by the Ministry is a commendable move as it simplifies the process of patent prosecution by allowing filing of one form for multiple related patents. Past decade has witnessed some path breaking changes brought about in the Patenting landscape in India to encourage innovations, research and development and adequate protection of the same under the Indian Patent Law.[1] http://www.ipindia.gov.in/writereaddata/Portal/Images/pdf/patents_amendment_rules_2020.pdf

 


Digital Media including OTT Platforms under Purview of Ministry of I & B.

Capture

In a recent move, the Ministry of Information and Broadcasting has brought all kinds of Digital/Online Media including Over the Top (OTT) Platforms under its ambit, according to the notification S.O. 4040(E) dated November 9, 2020,[1] issued by the Government of India. In an interview to a newspaper daily, a ministry official said the move was taken to ensure a level playing field for all media, and bring an “enabling regulatory environment so that all digital players adhere to the laws of the land. Some content on certain platforms has caused a lot of problems to the citizens of the country who don’t even have a grievance redressal platform. There have been at least 40 court cases where the government had to make an appearance. Courts have also urged the ministry to have a regulatory mechanism. We have been working on that with stakeholders.”[2]

The notification includes the following under the umbrella of Digital/Online Media:

  • Films and Audio-Visual programs are made available by online content providers.
  • News and current affairs content on online platforms

To date, there was no law regulating digital content in India. However, with this notification in place, the government will now control the online content.

Previously, in September 2020, fifteen Indian streaming services and digital companies released the “Universal Self-Regulation Code for Online Curated Content Providers”.[3] Though, the government expressed displeasure at the model proposed by the Internet and Mobile Association of India (IAMAI). The model was largely rejected because it did not define the code of ethics and was not clear on the definition of prohibited content. The IAMAI was asked to look into the model followed by the News Broadcasting Standards Authority (NBSA) and Broadcasting Content Complaints Council (BCCC).[4]

With the new notification in place, it would be interesting to see the impact it will have and the changes it would bring in the arena of digital media.

[1] https://www.livelaw.in/pdf_upload/pdf_upload-384486.pdf

[2] https://economictimes.indiatimes.com/industry/media/entertainment/media/govt-brings-all-otts-like-netflix-amazon-prime-and-digital-news-sites-under-ib-ministry/articleshow/79166254.cms?from=mdr

[3] https://www.medianama.com/2020/09/223-iamai-occp-self-regulation-summary/

[4] https://indianexpress.com/article/entertainment/web-series/ott-platforms-under-government-purview-7047502/

Related Posts

Social Media Influencer – Legal Implications

 


ASCI’s Advisory on COVID-19 Related Claims in Advertisements.

coronavirus6

Advertisement Standards Council of India (ASCI), a self-regulatory voluntary organization of the advertising industry on October 20, 2020 has issued an advisory concerning COVID-19 advertisements[1].

In its advisory, ASCI noted that there has been a proliferation of advertisements with misleading claims around COVID-19 cures and preventions during the pandemic.
Also read Rise in false and misleading advertisements amidst Coronavirus

What does the advisory say?

  • Advertising claims not applicable to Coronavirus- The Advisory states that advertisers should avoid making claims that the advertised product can assist in destruction or removal of any virus other than coronavirus. In case advertisers choose to claim removal of any other virus in their advertisement, they should include a disclaimer such as “Claim not applicable to coronavirus (COVID-19)” or a similar message with the disclaimer size and position as per the Disclaimer Guideline of ASCI
  • Advertising of AYUSH products– That the Advertisers of Ayurvedic, Unani, Siddha and Homeopathy (AYUSH) products and services have been advised to abide by the Order of Ministry of AYUSH dated April 1, 2020[2], on coronavirus (COVID-19) advertisements which directs AYUSH Regulatory authorities of states and UTs to prevent misleading advertisements of AYUSH-related claims for COVID-19 treatment in print, TV and electronic media and take necessary action against the persons/agencies involved in contravening the relevant legal provisions of Disaster Management Act, 2005. Section 52 of the Disaster Management Act makes making false claims a punishable offence. Section 33-E of the Drugs and Cosmetics Act, 1940 states that an AYUSH drug shall be deemed to be misbranded if it makes any false claim or is misleading in any particular manner and is punishable under Section 33-I(2) of the Act.
  • Claims supported by National and International authorities- Further, advertisers making to claims to reduce the chances of becoming infected with coronavirus (COVID-19) or gain immunity against it must substantiate their claims with technical support of national and international authorities such as WHO, ICMR, MoHFW, AYUSH, DCGI, CDC (USA), well recognized medical/technical literature or regulatory-approved clinical research conducted by a recognized medical institute/laboratory.

ASCI’s Code for Self-Regulation in Advertising

Advertising is the key to product placement in the market and also in the minds of consumers. Therefore, in order to regulate the content of advertisements, ASCI’s Code for Self-Regulation in Advertising prescribes that advertisements should be truthful and not distort facts or mislead consumers by omissions or implications. Further, they shouldn’t violate trust of consumers or exploit their lack of experience or knowledge.

While the pandemic has wreaked havoc, it has also prompted consumer goods, pharmaceutical and ayurvedic companies to design and develop new products that enable consumers to practice better hygiene practices and enhance their health. Companies around the globe are working towards develop therapeutic drugs and vaccines that cures and protects patients infected by the virus. The Advisory serves as a reminder to companies to not make claims that the advertised product cures coronavirus or provides complete immunity from the virus without backing such them with scientific evidence.

The Press Release states that ASCI has processed 250 advertisements and reported 233 from the healthcare sector to the ministry. Of these, 162 were successfully resolved as the advertisers either withdrew the advertisements or modified them. The remaining 71 were taken up by the ministry for appropriate action. Further, it has screened more than 500 advertisements that had COVID-related misleading claims on social media platforms and advertiser websites.

[1] https://ascionline.org/images/pdf/press-release-asci-announces-covid-19-advertising-advisory.pdf

[2] https://ascionline.org/images/pdf2/ministry_of_ayush_order_for_states_uts.pdf

Related Posts

Ministry of AYUSH orders to stop advertisement of AYUSH-related claims

Rise in False and Misleading advertisements amidst Coronavirus Outbreak

Dettol withdraws advertisement claiming soap bars to be ineffective

The Ministry of Consumer Affairs released Draft Guidelines for Misleading Advertisements

 


Online Gaming Advertisements Guidelines ASCI.

online-gaming

It has been recently reported by an Indian Daily, that ASCI (Advertisements Standards Council of India) may introduce guidelines to provide a streamlined regulatory framework to ascertain that online games involving real money are being offered in a responsible manner[1]. The advent of clear regulatory guidelines for advertisements by online gaming portals may be beneficial for the online gaming portals to impart clarity regarding the permitted mode of offering online games while aiming to safeguard the interests of the gamers who may be misled otherwise.

Online Gaming- On high rise!!

Mobile phones and handheld devices have now become an indispensable part of the lifestyle of people belonging to almost all walks of life and varied economic backgrounds. Such devices have not only connected people globally for communication but have also become a source of other services such as commercial transactions, banking, education, entertainment, etc.

With the penetration of internet connectivity in every nook and cranny of India, the pleasures of Online Gaming can be derived by anyone from anywhere. India has been reported to be one of the countries with the highest number of game downloads in 2019. India has acquired wide-scale popularity with a market value of more than USD 500 million in 2020 and an expected increase of USD 1.1 billion by 2021.[2] With the ongoing restrictions and social distancing mandates, on account of the COVID-19 pandemic, more and more people are opting for different home-bound sources of entertainment, which has been beneficial for the gaming industry as several gaming portals such as Paytm First Games and Gamerji have reported a 200% and 50% increase in their users of online gaming portals over March 2020.[3] Over half a million daily active gamers are reported to be spending 30- 45 minutes on gaming platforms.

Also read Lockdown- A Potential for the online gaming industry!!

As the online gaming industry is expanding its wings, the online gaming portals need to ensure that they opt for proper advertisement strategies to promote their games. With the expansion of internet services, the modes of advertisements by online gaming portals are no longer limited to print, radio, television commercials but now extend to online media including social media portals.

Advertising games on Social Media?? Do’s and Don’ts

Role of advertisements

Advertisements have been an age-old form of communication informing about the different types of products and services being offered. Not only do the advertisements help in the dissemination of information about the products or services, but they also help in convincing and thus attracting the customers and maximize the revenue generation.

Regulations monitoring broadcasting of advertisements in India

The advertisements in India are regulated by the Government as well as authorities such as the Advertising Standards Council of India (hereinafter referred to as “ASCI”) thereby preventing any prohibited content from being displayed in any advertisement.

  • The Code for Self-Regulation formulated by ASCI requires the advertisements to adhere to fair and just legal practices and ensure compliance to norms, including but not limited to, being based on honest representations, not being be offensive to the public, not encourage any harmful/ hazardous substances, must encourage fair competition, etc.
  • Specific to the gaming industry, online skill games with stakes are often confused with gambling activities operation of which is not legal in India. The Information Technology (Intermediaries Guidelines) Rules, 2011 read with Section 79(2) the Information Technology Act, 2000 requires ‘intermediaries’ like internet service providers, network service providers, search engines, telecom operators, etc. not to host or transmit any content which inter alia relates to or encourages gambling (Rules 3(2)(b), Rule 3(4)). Therefore, it is of extreme importance to clarify that the online games being offered for real-time money do not fall within the purview of gambling.
  • Gaming falls within the exclusive jurisdiction of the respective State laws.: Several States in India such as Assam, Odisha, Telangana, etc. do not allow the offering of games of skills with stakes. Therefore, it is essential that neither the skill games for money (including the online games) are offered in the States prohibiting them nor are the advertisements indicating their availability to the users resident thereof, be made.

While the new guidelines may prove helpful to online gamers in establishing transparency in respect to the risks associated while playing for real money, online gaming portals must clearly indicate compliance to accepted principles of law, including but not limited to, clearly specifying the permitted age of the gamers (individuals below the age of 18 years would not be offered to play games for real money on their portal), incorporation of appropriate disclaimers on the portal, before the online games for real money are offered by the online gaming portals.

Read more about online gaming and related laws in India here.

[1] https://www.livemint.com/industry/advertising/regulator-to-issues-advertising-norms-for-real-money-online-gaming-platforms-11605769585999.html

[2] https://www.livemint.com/

[3] https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/egaming-companies-have-a-field-day-as-virus-keeps-millions-home/articleshow/75001617.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

 


Ordinance for Air Quality Management in Delhi NCR.

CUSTOM-RECORDAL

As the winters have started creeping in the North India, the declining mercury has led to an inversely proportional surge in a deadly mix of smoke and fog, also commonly known as ‘smog’, especially in the capital city of Delhi. In view of this alarming environmental crisis, the Ministry of Law and Justice on October 28, 2020 has issued an Ordinance namely the Commission for the Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020. The Ordinance has been promulgated by the President of India and provides for the establishment of Commission for Air Quality Management in the National Capital Region and Adjoining Areas for better co-ordination, research, identification and resolution of problems surrounding the air quality index.

The Ordinance shall apply to Delhi NCR and adjoining states of Punjab, Haryana, Rajasthan and Uttar Pradesh where the sources of air pollution are located and are directly or indirectly causing adverse impact on air quality in the NCR.

Commission for Air Quality Management in the National Capital Region and Adjoining Areas

The powers and functions of the Commission inter alia includes the following:

  • The Commission has been conferred with the power to lay down air quality parameters, discharge of environmental pollutants parameters, to inspect premises violating the law, order closure of non-abiding industries or plants, etc.
  • The Commission can also restrict any industry, operations or processes or class of industries that can have implications on air quality in the said region.
  • The Commission shall have the power to take mitigation measures, issue directions/orders suo moto and entertain complaints under any other existing laws such as the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.
  • The Ordinance states that the Orders of the Commission shall prevail in case there is a conflict between the Central Pollution Control Board and the State Pollution Control Boards.

Penalties and Offences

Non-compliance of the provisions of the Ordinance– The Ordinance provides penalty of imprisonment for term that may extend to 5 years or fine extending upto INR 1 Crore or with both for non-compliance of the provisions of the Ordinance.

Offence committed by Company– For offence committed by any Company, the Ordinance provides that every person who at the time of offence was directly in charge for or responsible for the conduct of the business of the company, will be held guilty for offence under the Ordinance.

Any appeal from the Order of the Commission would lie before the National Green Tribunal (NGT).

Delhi NCR every year witnesses alarmingly poor quality of air from October onwards. The promulgation of Ordinance to mitigate the issue of air pollution and quality is a welcome step. However, its implementation in true letter and spirit is yet awaited.

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India: NGT snaps power for controlling Pollution

India: Supreme Court upholds NGT decision for CNG buses/coaches at IGI airport

India: Supreme Court of India: “No Cracker Boom”

 

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