Mar 8, 2023 | Contracts, Copyright, Indian Patents Act 1970, IPR & Business, Patent, Startups, Trademark
Video games are amongst the most widely enjoyed forms of entertainment today. While video games are predominantly played by people in their adolescence, these games are making their way into a multimillion-dollar full-fledged industry that is based on competitive playing. With this level of involvement of games in the lives of people everywhere, it then comes as no surprise that there have been cases where popular characters of video games have come under the spotlight of intellectual property theft. Let’s take a look at a case riddled with twists featuring some of the world’s most popular movie and video game characters.
The case
When we picture the word “Mario”, we instantly imagine a character wearing a red plumber’s uniform, bouncing on platforms to save his princess from evil forces. And when we hear the phrase “King Kong”, our minds instantly jump to a massive gorilla waving his arms around, swatting at airplanes atop the empire state building. It may come as a surprise that the owning studios of these productions have in fact gone head-to-head in a rather interesting lawsuit regarding the theft of the idea of the popular oversized gorilla.
The movie King Kong was first released in the year 1933 by Merian C. Cooper. The production house for King Kong was RKO, which later went on to release subsequent sequels of King Kong in the following years. The movie franchise went on to do very well, earning their producers and directors large sums of money throughout the runtime of the movie. In the year 1981, Nintendo released their game Donkey Kong, where Donkey Kong was a large ape and would attempt to stop Mario (then called Jumpman) from reaching Pauline (Mario’s romantic interest, then called Lady). The game was a big hit and it was simply a matter of time before the game caught the eye of Universal Studios, who then apparently held the license for King Kong. Outraged at Nintendo and other game studios for blatantly copying the idea of King Kong, Universal Studios sternly ordered every agency selling products under the name of Donkey Kong to pay Universal Studios royalties for the misuse of Donkey Kong by way of cease-and-desist letters. Almost all the agencies reverted back with the royalty payments, except Nintendo.
Nintendo attempted to settle the suit outside the proceedings of a court in the year 1982 to which the Vice President of Universal Studios Robert Hadl responded by asking Nintendo to stop making copies of Donkey Kong. Nintendo’s attorney Howard Lincoln pointed out that the name King Kong had previously been used on multiple products that were in no way affiliated with Universal Studios, claiming that Universal Studios in fact did not have the rights to King Kong in the first place. Hadl then asked Nintendo to brace themselves for a lawsuit, claiming that Universal Studios saw lawsuits as a way of making money.
John Kirby was brought in by Lincoln to represent Nintendo in the case because he had a history of winning big-name lawsuits for companies like Sony. During the proceedings, Universal Studios claimed that Nintendo’s Donkey Kong and Universal Studios’ King Kong could easily be confused with each other and that the story line of the movie and game were also similar. To counterattack, Nintendo asked a representative to assure the court that the gameplay of Donkey Kong was in no way similar to the storyline of King Kong. Additionally, Nintendo went on to claim that Universal Studios did not own the rights for King Kong and shockingly enough, that Universal Studios were aware of this fact and still decided to demand royalties for King Kong despite knowing they did not have the rights for King Kong.
Historically, the rights of King Kong had always been a territory undefined. When King Kong was initially released by Cooper in 1933, the rights were firmly with Cooper. Later on, Cooper realized that other production houses were making movies with the character King Kong, and that he had no clear documents preventing them from doing so. Cooper tried to find papers to authenticate his rights but found that he had given the rights for only 2 movies to a production house called RKO Pictures and for a book written by his friend Delos W. Lovelace sometime in the decade of 1970, a whole decade before the release of donkey Kong by Nintendo. However, Cooper could not find documents stating that the license was given to RKO Pictures. During this time, Universal Studios wanted to make their own series of movies on King Kong but were stopped as the rights to King Kong were with RKO Pictures. Desperate to win King Kong, Universal Studios argued in court that the copyright on Lovelace’s novel (which was the only existing document proving ownership of any kind) had expired by then and that King Kong was therefore a public domain character. The court decided that King Kong was indeed in the public domain and therefore anyone could make their reproductions of the character as long as the story involving the character was not copied.
The presiding judge during the 1982 case of Nintendo versus Universal Studios kept all this in mind and reprimanded Universal Studios for knowing fully well that Universal Studios had themselves contested that King Kong was a public domain character but still asserted that they owned the character and even demanded royalties from agencies making use of King Kong. The presiding judge further ruled that the game Donkey Kong was not similar to the storyline of King Kong in any way and was “a parody” at best, thus solidifying Nintendo’s case against Universal Studios. The judge declared that any agency that had paid royalties to Universal Studios were free to demand the royalty fee back from Universal Studios and that all cease-and-desist letters from Universal Studios were rendered null and void. Further, the court found that a game released by a company called Tiger Electronics was very similar to Donkey Kong and thus ordered Tiger Electronics to pay Nintendo a sum of $58 million.
Universal Studios was the one to push this lawsuit against Nintendo in order to extract money from them by means of a character that they didn’t have the rights for. Universal Studios knew this in fact because a few years ago they themselves had gone to court to prove that King Kong was a public domain character, and anyone was free to use the character. Nintendo had initially planned to settle the matter outside of the court but went against the movie giant Universal Studios and even won with getting money from profits from a by-product of the ruling. This case shows us that it is never a good idea to underestimate the court or your opponents, and to assume that all secrets regarding ownerships and rights are out in the open for everyone to access. Universal Studios underestimated the court and Nintendo and subsequently ended up losing the case.
Author: Udit Sharma, Graduate student in Additive Manufacturing, Uppsala University, Sweden
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Mar 8, 2023 | IPR & Business
What is ageing?
How does the sequence of life appear in a person over time?
Is there any external influence that controls our biological clock?
If so, how does our biological clock determine relationship of time in our physical world?
The Sense of time and its relationship to celestial events are well documented in our history. It is a wonder that our ancestors were able to come up with precise calculation of a year, including the leap year, which takes care of timing of revolution of mother Earth around our star, the Sun. The speed of revolution and rotation are constant and would remain so for the next 5 billion years to come, the remaining life span of Sun.
Year after year, the seasons change and we witness the marvel of Nature. The whole life system on earth responds to these changes appropriately. The axial tilt in the Earth’s axis and its revolution around the year are the main reasons for these seasonal changes that we see. In physical form, it is the duration and intensity of Sun light (with its heat energy) that brings about these variations on Earth.
It is not just photosynthesis – a mechanism by which the plant life harnesses the solar energy and convert them into organic energy / fuel. In animal kingdom, the Sun influences the diurnal cycle (day and night variations in body) and the seasonal cycles that directly influences ageing.
We see the world through our eyes. The light is conveyed through our retina (within the eyeball) to the rear end of the brain -the occipital lobes, through the optic nerves (the second cranial nerve). Here, the light and images are captured, are interpreted and associated with meaning. This is the visual pathway. The vision of timing of nature is also conveyed to the brain, through an interesting circuit, the lesser known – supra-optic pathway, which are nerves from the retina reaching the third eye – the Pineal Gland!
The third eye is often associated with religious visions, the ability to observe chakras and auras. In Taoism, Chinese religious sects such as Chan and Zen.
in Japanese, “third eye training” involves focusing attention on the point between the eyebrows with the eyes closed. In Hindu mythology, the third eye of Lord Shiva, though is described in forehead(by most) is also described by few to be actually located in the rear of the head, an analogy to pineal gland (Ref: https://blavatskytheosophy.com/the-third-eye-and-the-pineal-gland/).
I am not giving a neurosurgeon’s perspective of the third eye, rather, it’s a proven fact in medical science. The third eye does exist and gives the vision of life for the individual. The pineal gland, located in the third ventricle of the brain (at the rear portion of brain) is the anatomical third eye of the body. The light rays when reach our pineal gland, convey information of the average length of day (exposure to light), which over a period of time is interpreted as seasons. It secretes Melatonin in absence of light. A chemical indication of day night cycle within our body is set here.
The pineal gland in close association with the hypothalamus and pituitary gland sets the circadian rhythm of life. Which is the daily variations in our body with respect to day / night cycle, our timing of sleep & activity and energy needs. Through the influence on all hormones of the body, they together bring about short and long term changes in the body mechanism ultimately controlling the growth and ageing in a person.
The past decade of research has converged on an understanding that in many or perhaps even most instances, causality with respect to disease, disorders, and maladaptive development—as well as the preservation of health and maintenance of normative, adaptive development—is best viewed as an interplay between genome-based biology and environmental exposures. This understanding represents a clear departure from the historical views that human morbidities are attributable to either pathogenic environments or faulty genes.
Growth and ageing are natural. There are genetic codes set in a given individual, but are influenced significantly by the environmental factors. Healthy environment is not easy to find, thanks to mindless development that is happening around the world. Our quality of food, air and water are going to only deteriorate with time. Our lifestyle and stress further adds to these worries. Wellness is the concept which all of us should work towards, the best investment that we can do for ourselves.
Biological clock
The third eye is real, and its disturbance is now experienced by most of the population as lifestyle disorders. The biological clock has been re-set in all of us, probably due to over exposure to artificial light, more so with the advent of computers and smart phones. Early puberty, obesity, infertility, insomnia (lack of sleep) and early physical changes of ageing are quite common nowadays.
We cannot go back to the dark ages, however, we can make an attempt to follow a routine in life. With balance of work, activity and adequate sleep, we can at-least work towards the remedial measures.
Adequate physical activity & exercise, avoidance of coffee/tea after 4pm and early dinner can contribute to peaceful sleep. Of course, this is possible only when we can take our minds off our TV and phone! For people working on shifts/ night duty, it is an occupational hazard. They have to find ways not to miss their 6 to 7 hours of sleep.
To age graceful and lead a healthy life, one has to take efforts to combat stress and live a healthy lifestyle. Importance of sleep cannot be over emphasized. Sleep is essential for not only resting the body and mind, but to give the right sense of timing to our biological clock – the third eye.
Author: Dr Murali Mohan
Director of Neurosciences at People Tree group of Hospitals; Director at Dr Klinisch Research Pvt Ltd; Managing Director at Synapse Health Centre LLP; Founder & Managing Director at Radarc Medical Innovations Pvt Ltd
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Mar 7, 2023 | Indian Patents Act 1970, Key Terms of Patents Act
The term Post-Dating with respect to Patent law means shifting date of filing patent application to the later date. There are specific reasons for which the applicant desires to post-date the patent application. Provision of post-dating a patent application is available in other countries like New Zealand and United Kingdom. However, the US patent law does not have any provision for post-dating of patent application.
In Indian Patents Act 1970, there is a mention of post-dating in Section 9 [Provisional and Complete specifications] and Section 17 [Power of Controller to make orders respecting dating of application].
Applicant can request the Controller to post-date the application under Section-9, after filing & before the grant of the patent. The date of post-date shall be specified, and the Controller may direct that the application shall be post-dated. Such post date shall not be requested or made for a date later than 6 months from the date on which it was actually made or would, but for the provisions of this sub-section, be deemed to have been made. Applicant shall file complete specifications within 12 month of filing provisional application. On the request of applicant, the Controller may cancel the provisional specification and post-date the application to the date of filing of the complete specification.
Illustration
Date of filing Provisional application: 5th June 2009
Date of filing Complete application: 15th October 2009
By postdating under section 9, Priority date could be shifted to 15th October 2009
Postdating can’t be requested beyond 6 months from date of filing
In Standipack Pvt. Ltd. Vs. Oswal Trading Co. Ltd. (AIR 2000 Delhi 23, 80 (1999), wherein the judge while considering the provisions of postdating clearly stated in paragraph 8 it was held that the postdating of the patent can be done only to the date of filing of the complete specifications. Where a complete specification has been filed in pursuance of an application for a patent accompanied by a provisional specification or by a specification treated by virtue of a direction under sub-section (3) as a provisional specification, the Controller may, if the applicant so requests at any time before [grant of patent], cancel the provisional specification and post-date the application to the date of filing of the complete specification.
U/S 17 [Power of Controller to make orders respecting dating of application], the application for patent may be post-dated to a date not later than six months from the date of application on a request made by the applicant at any time before the grant of patent along with the prescribed fee as given in first schedule. However, this provision will not apply if the application is deemed to be abandoned.
Illustration
Date of filing application: 5th June 2009
Postdating can’t be requested beyond 5th December 2009 (6 months from date of filing)
There is no specific form for post-dating the application and hence the request for post-dating can be filed through Form-30 to post-date the application.
Applicant may be required to post-date the application under specific circumstances. If the applicant has filed provisional application, within 12 months the complete application shall be filed, else, the application shall be deemed to be abandoned. However, if the information to file complete application is not ready or there is some financial crisis, the applicant can post-date the application to the maximum time of 6 months and this helps him to extend his deadline to file complete application. It is interesting to note here that the post dating as an option can be availed to post-date the date of filing complete application also if the applicant claims priority date by filing complete application. This may give extra time to file PCT application, if needed.
Even though post dating is helpful for the applicant in few circumstances, it could be very risky at times. After filing patent application, if the applicant has disclosed the invention in public by in any way, followed by post-dating of the application, this might destroy novelty of the invention. Therefore, the applicant shall opt for post-dating the application after calculating the risk.
Watch Video HERE (Post Dating-Term 17)
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Mar 7, 2023 | Indian Patents Act 1970, Key Terms of Patents Act
A plaintiff, also known as a claimant or complainant, is the term used for the party who initiates a lawsuit before a court. Plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order like an order for damages.
A defendant is any party who is required to answer the complaint of a plaintiff in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a statute.
In a well-known case, Apple Inc vs VirnetX, relating to FaceTime video calling service, VirnetX sued Apple Inc for infringement of four patents of VirnetX used in its FaceTime video calling service (U.S. Patent Nos. 6,502,135, 7,418,504, 7,921,211 and 7,490,151). Apple was ordered to pay US$368.2 million in damages to VirnetX.
In this case, VirnetX initiatied law suit against Apple Inc for infringement of patents and hence VirnetX is a Plaintiff, whereas Apple Inc is a Defendant.
Following are the important sections of the Patent Act, where the terms Plaintiff and Defendant have been used:
U/S 104A [Burden of proof in case of suits concerning infringement]
Infringement in simple words is violation of rights of a patent holder. In any suit for infringement of a patent, plaintiff (Patentee) has burden of proof and this is specifically for the product patent where a patentee can compare infringed product with his patent claims and assess extent of infringement.
However, where the subject matter of patent is a process for obtaining a new product and the patentee could not establish through reasonable efforts to determine the process actually used by the infringer, the court may direct the defendant to prove that the process used by him to obtain the product, identical to the product of the patented process, is different from the patented process. Hence, in case of process patent infringement, burden of proof shifts from plaintiff to the defendant.
U/S 107 [Defenses, etc., in suits for infringement]
When a law-suit is filed by the plaintiff for infringement of his patent rights, the defendant shall defend himself and prove that he is not infringing rights of the plaintiff. All the grounds of revocation U/S 64 can be used as defense by the defendant.
U/S 109 [Right of exclusive licensee to take proceedings against infringement]
In any suit for infringement of a patent by an exclusive licensee, if the patentee does not join as plaintiff, he is added as a defendant, but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.
Watch Video HERE (Plaintiff & Defendant- Term 14)
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Mar 7, 2023 | Indian Patents Act 1970, Key Terms of Patents Act, Patent
Bolar exception is one of the exceptional acts where the use of patented invention without consent of the patentee doesn’t constitute infringement.
U/S 107A [Certain acts not to be considered as infringement] of Indian Patents Act 1970, any act of making, constructing, using, selling or importing a patented invention solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, use, sale or import of any product.
Some countries allow manufacturers of generic drugs to use the patented inventions for development and submission of information required under law. For example, from public health authorities, without the patent owner’s permission and before the patent protection expires. The generic producers can then market their version as soon as the patent expires. This provision is called “Bolar Exceptions” or “regulatory exception”.
Case-Study: Roche Products v. Bolar Pharmaceutical
This is a landmark case in the United States related to the manufacturing of generic pharmaceuticals. Bolar was a generic drug manufacturer and Roche was a brand-name pharmaceutical company which made and sold Valium, the active ingredient of which was protected by patent. Before patent expiration, Bolar used the patented chemical in experiments to determine, if its generic product was bioequivalent to Valium in order to obtain FDA approval for its generic version of Valium. Bolar argued that its use of the patented product was not infringement under the experimental use exception to the patent law.
The Court of Appeals for the Federal Circuit rejected Bolar’s contention holding that the experimental use exception did not apply because Bolar intended to sell its generic product in competition with Roche’s Valium after patent expiration and, therefore, Bolar’s experiments had a business purpose. Bolar also argued that public policy in favor of availability of generic drugs immediately following patent expiration justified the experimental use of the patented chemical because denying such use would extend Roche’s monopoly beyond the date of patent expiration.
The court rejected this argument, stating that such policy decisions should be made by congress. Likewise, the court decided that apparent policy conflicts between statutes such as the Food and Drug Act and the Patent Act should be decided by congress and not the courts. Shortly after Roche v Bolar was decided, congress did pass a law permitting use of patented products in experiments for the purpose of obtaining FDA approval, which established the modern system for FDA approval of generic drugs.
Watch Video HERE (Bolar Exceptions- Term 8)
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