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1
498A IPC / No Investigation is done before 498a is filed
« on: September 24, 2013, 07:59:59 PM »
No investigation is done before 498a is filed.
And arrest warrants are issued without investigation.

this is the single biggest flaw of 498a IPC as it is this fact that lead to wide spread misuse

2
Lawyers in India / Lawyers in Patiala House on strike
« on: September 24, 2013, 07:49:27 PM »
Lawyers of Patiala House district court will observe a day-long strike today against Delhi government's "arbitrary" call to relocate the court complicated.

The new delhi Bar Association ( NDBA) on tuesday same that during a meeting of the chief committee survived weekday, the members had "expressed their anguish over the unilateral cupboard decision" to relocate the court complicated from Patiala House to Deen Dayal Upadhyay Marg.

The lawyers' body same the chief committee had met Union law minister Kapil Sibal on Sep 20 and CM Sheila Dikshit on Sep 21, and submitted written representations stating the failings and skimpy infrastructure in winding up the cabinet call.

3
Patent laws / Changes brought by the 2005 Amendment of the patent Act
« on: August 21, 2013, 11:51:12 PM »
a) The 2005 Amendment amend the definition of“New Invention”,“Inventive Step” and place in a new ingress of “Pharmaceutical Substances” in the explanation sentential term.
 
b) Providing of 'taking of characterization' and its promulgation have been deleted.
 
c) Qualification in the supplies pertaining to contrariety procedures with a contemplate to streamlining the combination of parts to form a whole by having both Pre-allow and Support-allow contrariety in the Open Customary duty.
 
d) Putting on for open will be published in Authoritative Diary. At that duration contrariety can be made on limited precipitate but sense of hearing is not directory.
 
e) After allow of open, contrariety can be made within 12 months.
 
f) Set for violation of open cannot begin before epoch of blazon of blazon of the putting on.
 
g) Penalties enhanced really.
 
h) Fortifying the supplies pertaining to public safety to keep in safety against patenting abroad of dual use technologies.
 
i) Rationalisation of supplies pertaining to duration-lines with a contemplate to introducing suppleness and reducing the processing duration for open applications, and simplifying and rationalising procedures.

4
Patent laws / Requirements for Obtaining an EMR
« on: August 21, 2013, 11:48:48 PM »
a) The product must be patentable, that is, it must be an inventing as per Part 2 of the Patents Act 1970, and must not drop under the non-patentable products listed in Sections 3 and 4, such as products derived from traditionary discernment or of atoms efficacy-connected products.
 
b) The inventing must have been made in India or in a WTO Assembly land. If made in a assembly land, the inventing must have been:
 
(i)  Filed on or after January 1, 1995, and

(ii) Before getting a expanded in India, the suitor must have obtained such a expanded in the Assembly land.
 
c) If the inventing has been made in India,
 
(i) The applying for expanded for the rule or continued movement of product of such a essential nature should have been filed on or after January 1, 1995, and

(ii) The expanded must have been granted on or after the age of filing of such EMR.

5
Patent laws / Patentability of Software in India
« on: August 21, 2013, 11:42:59 PM »
Section 3(k) of the Patents Act, 1970
excluded “computer programme” from the scope of patentability.

This exclusion met with conflicting interpretations at the patent office, with some examiners granting patents to software combined with hardware or software with a demonstrable technical application of some sort.

The 2004 Ordinance therefore qualified this exclusion by stating that software with a “technical application” to industry or when “combined with hardware” would be patentable. Owing to vigorous opposition from the free software movement, this provision was removed from the 2005 Act.

Thus the earlier stand under the Patents Act, 1970 that a computer programme is not patentable prevails.

6
Any of the following documents may be registered under this Act, namely:-
 
(a) instruments (other than instruments of donative and wills) which gist or have influence to bring into being, communicate, cast, march or put out, whether in at hand or in subsequent time, any right, inscription or affect, whether fixed or fortuitous, of a value less than one hundred rupees, to or in fixed attribute;
 
(b) instruments acknowledging the reception or paying of any deliberation on inventory of the origination, assertion, appointment, restriction or extinguishment of any such right, inscription or affect;
 
(c) leases of fixed attribute for any confine not exceeding one year, and leases exempted under division 17;
 
(cc) instruments transferring or assigning any command or method of a royal household or any command when such command or method or command purports or operates to bring into being, communicate, cast, march or put out, whether in at hand or in subsequent time, any right, inscription or affect, whether fixed or fortuitous, of a value less than one hundred rupees, to or in fixed attribute
 
(d) instruments (other than wills) which gist or have influence to bring into being, communicate, cast, march or put out any right, inscription or affect to or in portable attribute;
 
(e) wills; and
 
(f) all other documents not required by division 17 to be registered.

7
The Indian Evidence Act section 113A deals with the presumption as to the abetment of suicide by a married woman, which states that:

When the inquiry is whether the perpetration of self-murder by a woman had been abetted by her conjugal man or any referring of her conjugal man and it is shown that she had committed self-murder within a circuit of seven years from the era of her nuptials and that her conjugal man and such referring of her conjugal man had subjected her to brutality, the short may think, having regard to all other condition of the sheathe, that such self-murder had been abetted by her conjugal man or by any such referring of her conjugal man.
 
For the object of this part, brutality shall have same intention as in part 498A of the Indian Punitive Digest
 
The mete brutality shall mean the same as defined in 498A part of India Punitive Digest according to this:
 
Brutality mode-
 
a)  Any willful leadership which is of such a aggregate of phenomena as is likely to impel the woman to consign self-murder or to cause imprint injustice or hazard to life, member or hale condition (whether ideal or material) of the woman; or
 
b) Harassment of the woman where such harassment is with a see to coercing her or any somebody of the same nature to her to appropriate any illegal require for any characteristic or useful safety or is on score of deficiency by her or any such somebody of the same nature to her to appropriate such require.
 
The part 113A was inserted by Felonious Law (second reformation) Act 46 of 1983. This was introduced because there was increasing sum up of dower end of life, which was in circumstance a body of serious belong to. This ill was commented upon the Juncture Committee of the Abode to inspect the act of Dower Disallowance Act, 1961. The cases of brutality by the conjugal man or referring of conjugal man which would come in self-murder or manslaughter only constituted a tiny portion. In symmetry to stir this arduousness it was proposed to mend Indian Punitive Digest, Indian Trial Act and Felonious Conduct Digest that could efficiently quantity with the cases of dower end of life as well as brutality to conjugal woman by her conjugal man or his relatives.
 
The symmetry of law is that if a somebody wants to get some restorative done through the princely retinue he has to make good the being of certain factual ground. In the same way in symmetry to draw the anticipation of s113A of the Indian Trial Act the load of proving the circumstance lies on the somebody who affirms it. This fountain-head of load of trial is adjustable to all nuptial offences. For attracting the anticipation of 113A the following things has to be proved.
 
a. Self-murder must be committed by a conjugal woman
b. Self-murder must have been abetted by conjugal man or any referring of her conjugal man
c. Self-murder must be committed with in seven years of the nuptials
d. She must have been subjected to brutality (as defined in 498A of Indian Punitive Digest) by her conjugal man.
 
Guess under part l13A refers to one of the three ingredients of abetment as defined in part 107 IPC i.e. urgency, intrigue and designed aiding of the act. Where leadership of the accused indicated that he did not want her to die even though he might have treated her cruelly earlier, it cannot be presumed that he abetted the self-murder.
 
The guess of abetment of self-murder by a conjugal woman is rebuttable. If the accused is able to make good that the woman has committed self-murder by other rational faculty or she was not harassed in her nuptial abode by her in-laws in the name of demanding more dower. This guess can be rebutted. There is an pleasing circumstance to memorandum that the guess of 113A is adjustable only against the conjugal man not against woman. This was revealed with an pleasing sheathe that came before the Lofty Princely retinue in 2000.

8
Trademark laws / what is Trademark Classification in India
« on: August 07, 2013, 10:08:09 PM »
Trademark in India is classified in about 42 different classes, which includes chemical substances used in industry, paints, lubricants machine and machine tools, medical and surgical instruments, stationary, lather, household, furniture, textiles, games, beverages preparatory material, building material, sanitary material, and hand tools, other scientific and educational products.

These classes again are further sub-divided. The main objective of trademark classification is to group together the similar nature of goods and services. Out of these 42 classes few are for product and other for services.

Classification of goods and services - Name of the classes
(Parts of an article or apparatus are, in general, classified with the actual article or apparatus, except where such parts constitute articles included in other classes).

Class 1. Chemical used in industry, science, photography, agriculture, horticulture and forestry; unprocessed artificial resins, unprocessed plastics; manures; fire extinguishing compositions; tempering and soldering preparations; chemical substances for preserving foodstuffs; tanning substances; adhesive used in industry

Class 2. Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colorants; mordents; raw natural resins; metals in foil and powder form for painters; decorators; printers and artists

Class 3. Bleaching preparations and other substances for laundry use; cleaning; polishing; scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions, dentifrices

Class 4. Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels(including motor spirit) and illuminants; candles, wicks

Class 5. Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; materials for stopping teeth, dental wax; disinfectants; preparation for destroying vermin; fungicides, herbicides

Class 6. Common metals and their alloys; metal building materials; transportable buildings of metal; materials of metal for railway tracks; non-electric cables and wires of common metal; ironmongery, small items of metal hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; ores

Class 7. Machines and machine tools; motors and engines (except for land vehicles); machine coupling and transmission components (except for land vehicles); agricultural implements other than hand-operated; incubators for eggs

Class 8. Hand tools and implements (hand-operated); cutlery; side arms; razors

Class 9. Scientific, nautical, surveying, electric, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life saving and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire extinguishing apparatus

Class 10. Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; orthopaedic articles; suture materials

Class 11. Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying ventilating, water supply and sanitary purposes

Class 12. Vehicles; apparatus for locomotion by land, air or water

Class 13. Firearms; ammunition and projectiles; explosives; fire works

Class 14. Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and other chronometric instruments

Class 15. Musical instruments

Class 16. Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); playing cards; printers' type; printing blocks

Class 17. Rubber, gutta percha, gum, asbestos, mica and goods made from these materials and not included in other classes; plastics in extruded form for use in manufacture; packing, stopping and insulating materials; flexible pipes, not of metal

Class 18. Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides, trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery

Class 19. Building materials, (non-metallic), non-metallic rigid pipes for building; asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal.

Class 20. Furniture, mirrors, picture frames; goods(not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother- of-pearl, meerschaum and substitutes for all these materials, or of plastics

Class 21. Household or kitchen utensils and containers(not of precious metal or coated therewith); combs and sponges; brushes(except paints brushes); brush making materials; articles for cleaning purposes; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes

Class 22. Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes) padding and stuffing materials(except of rubber or plastics); raw fibrous textile materials

Class 23. Yarns and threads, for textile use

Class 24. Textiles and textile goods, not included in other classes; bed and table covers.

Class 25. Clothing, footwear, headgear

Class 26. Lace and embroidery, ribbons and braid; buttons, hooks and eyes, pins and needles; artificial flowers

Class 27. Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings(non-textile)

Class 28. Games and playthings, gymnastic and sporting articles not included in other classes; decorations for Christmas trees

Class 29. Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces; eggs, milk and milk products; edible oils and fats

Class 30. Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking powder; salt, mustard; vinegar, sauces, (condiments); spices; ice

Class 31. Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt

Class 32. Beers, mineral and aerated waters, and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages

Class 33.Alcoholic beverages(except beers)

Class 34. Tobacco, smokers' articles, matches

Services

Class 35.Advertising, business management, business administration, office functions.

Class 36.Insurance, financial affairs; monetary affairs; real estate affairs.

Class 37. Building construction; repair; installation services.

Class 38. Telecommunications.

Class 39. Transport; packaging and storage of goods; travel arrangement.

Class 40. Treatment of materials.

Class 41. Education; providing of training; entertainment; sporting and cultural activities.

Class 42. Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software.

Class 43. Services for providing food and drink; temporary accommodation.

Class 44. Medical services, veterinary services, hygienic and beauty care for human beings or animals; agriculture, horticulture and forestry services.

Class 45. Legal services; security services for the protection of property and individuals; personal and social services rendered by others to meet the needs of individuals.

9
Once an actor has consented for incorporation of his performance in a film, he shall have no more performer’s rights to that performance.

10
The Registrar of Copyrights has the powers of a civil court when trying a suit under the Code of Civil Procedure in respect of the following matters, namely,

# summoning and enforcing the attendance of any person and examining him on oath;

# requiring the discovery and production of any document;

# receiving evidence on affidavit;

# issuing commissions for the examination of witnesses or documents;

# requisitioning any public record or copy thereof from any court or office;

# any other matters which may be prescribed.

11
According to section 2(1)(l) of the IT Act

computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programs, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions.

A computer system has the following characteristics:
1. it is a device or collection of devices which contain data or programs,
2. it performs functions such as logic, storage, arithmetic etc,
3. it includes input and output support systems,
4. it excludes non-programmable calculators.

Illustrations:
• Laptop computers
• Cell phones
• Sophisticated laser printers
• Hi-end scanners

12
Cyber laws / IT acts powers to intercept, monitor and block websites
« on: July 30, 2013, 04:56:06 AM »
Until the passage of this Section in the ITAA, phone tapping was governed by Clause 5(2) of the Indian Telegraph Act of 1885, which said that “On the occurrence of any public emergency, or in the interest of the public safety, the Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order”. Other sections of the act mention that the government should formulate “precautions to be taken for preventing the improper interception or disclosure of messages”. There have been many attempts, rather many requests, to formulate rules to govern the operation of Clause 5(2). But ever since 1885,

no government has formulated any such precautions, maybe for obvious reasons to retain the spying powers for almost a century.

 A writ petition was filed in the Supreme Court in 1991 by the People’s Union for Civil Liberties, challenging the constitutional validity of this Clause 5(2). The petition argued that it infringed the constitutional right to freedom of speech and expression and to life and personal liberty. In December 1996, the Supreme Court delivered its judgment, pointing out that “unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers” given them under 5(2). They went on to define them thus: a public emergency was the “prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action”, and public safety “means the state or condition of freedom from danger or risk for the people at large”. Without those two, however “necessary or expedient”, it could not do so. Procedures for keeping such records and the layer of authorities etc were also stipulated.

13
Section 69: This is an interesting section in the sense that it empowers the Government or agencies as stipulated in the Section, to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource, subject to compliance of procedure as laid down here. This power can be exercised if the Central Government or the State Government, as the case may be, is satisfied that it is necessary or expedient in the interest of sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence. In any such case too, the necessary procedure as may be prescribed, is to be followed and the reasons for taking such action are to be recorded in writing, by order, directing any agency of the appropriate Government. The subscriber or intermediary shall extend all facilities and technical assistance when called upon to do so.

Section 69A inserted in the ITAA, vests with the Central Government or any of its officers with the powers to issue directions for blocking for public access of any information through any computer resource, under the same circumstances as mentioned above. Section 69B discusses the power to authorise to monitor and collect traffic data or information through any computer resource

14
Cyber laws / Section 67B of IT act deals in Child Pornography
« on: July 30, 2013, 04:52:41 AM »
Child Pornography has been exclusively dealt with under Section 67B. Depicting children engaged in sexually explicit act, creating text or digital images or advertising or promoting such material depicting children in obscene or indecent manner etc or facilitating abusing children online or inducing children to online relationship with one or more children etc come under this Section. ‘Children’ means persons who have not completed 18 years of age, for the purpose of this Section. Punishment for the   first conviction is imprisonment for a maximum of five years and fine of ten lakh rupees and in the event of subsequent conviction with Imprisonment of seven years and fine of ten lakh rupees.

Bonafide heritage material being printed or distributed for the purpose of education or literature etc are specifically excluded from the coverage of this Section, to ensure that printing and distribution of ancient epics or heritage material or pure academic books on education and medicine are not unduly affected.

Screening videographs and photographs of illegal activities through Internet all come under this category, making pornographic video or MMS clippings or distributing such clippings through mobile or other forms of communication through the Internet fall under this category.

Section 67C fixes the responsibility to intermediaries that they shall preserve and retain such information as may be specified for such duration and in such manner as the Central Government may prescribe. Non-compliance is an offence with imprisonment upto three years or fine.

15
Section 67 deals with publishing or transmitting obscene material in electronic form. The earlier Section in ITA was later widened as per ITAA 2008 in which child pornography and retention of records by intermediaries were all included.

Publishing or transmitting obscene material in electronic form is dealt with here. Whoever publishes or transmits any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely to read the matter contained in it, shall be punished with first conviction for a term upto three years and fine of five lakh rupees and in second conviction for a term of five years and fine of ten lakh rupees or both.

This Section is of historical importance since the landmark judgement in what is considered to be the first ever conviction under I.T. Act 2000 in India, was obtained in this Section in the famous case “State of Tamil Nadu vs Suhas Katti” on 5 November 2004. The strength of the Section and the reliability of electronic evidences were proved by the prosecution and conviction was brought about in this case, involving sending obscene message in the name of a married women amounting to cyber stalking, email  spoofing and the criminal activity stated in this Section.

Section 67-A deals with publishing or transmitting of material containing sexually explicit act in electronic form. Contents of Section 67 when combined with the material containing sexually explicit material attract penalty under this Section.

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