IPR
Topic 88 Intro Emerging Tech
Topic 88 — Introduction to Emerging Technology IP
The 21st century has produced technological innovations — artificial intelligence (AI), generative AI (GenAI), blockchain, NFTs (non-fungible tokens), 3D printing, quantum computing, the metaverse — that fundamentally challenge the traditional IP frameworks designed for industrial-era inventions and pre-digital creative works. Indian IP law is in active evolution. The Indian Patent Office released the Computer Related Inventions (CRI) Guidelines 2025 on 29 July 2025, providing dedicated examination frameworks for AI, ML, Deep Learning, Blockchain, and Quantum Computing patents. The Delhi High Court is actively adjudicating ANI Media v. OpenAI (CS(COMM) 1028/2024; 2024 SCC OnLine Del 8120) — judgment reserved 2025 — addressing whether AI training on copyrighted news content constitutes fair use under Section 52. Stephen Thaler v. Copyright Office (Del HC 2025) directed the Copyright Office to decide AI authorship claims within 8 weeks. The Ministry of Commerce constituted an expert panel in May 2025 to evaluate Copyright Act 1957 amendments for GenAI. The Indian framework now operates through judicial interpretation of existing statutes — Section 3(k) Patents Act for software patents, Section 2(d)(vi) Copyright Act for "computer-generated works," contract law for blockchain smart contracts. This topic introduces the conceptual challenges, the statutory framework, the institutional response, and the strategic landscape.
1. The Disruption Framework
A. Why Emerging Tech Disrupts IP Law
1 AUTHORSHIP Who is the author? | 2 INVENTOR Can AI be inventor? | 3 TECHNICAL effect or per se? |
4 BORDERLESS jurisdiction issues | 5 ENFORCEMENT liability questions | 6 TRAINING data fair use? |
✅ Six fundamental challenges emerging tech poses to IP law 1. AUTHORSHIP — Traditional copyright assumes a human author. AI generates works autonomously — who is the author? The user prompting? The developer training the model? The model itself? 2. INVENTOR — Patents Act requires a human inventor (Section 6). Can AI systems like DABUS be inventors? Globally rejected so far. 3. TECHNICAL EFFECT — Section 3(k) excludes "computer programs per se" but software with technical effect is patentable. Where does AI/blockchain/quantum sit? 4. BORDERLESS — AI servers in USA; users in India; outputs globally. Jurisdiction issues unprecedented in IP enforcement. 5. ENFORCEMENT — Who is liable when AI generates infringing content? Developer? User? Platform? 6. TRAINING DATA — Foundation of GenAI is training on copyrighted material. Is this fair use under Section 52? The ANI v. OpenAI case will decide. These are not academic — they affect every Indian creative industry, software developer, content creator, and innovator. |
2. Categories of Emerging Technologies
Technology | Description | IP Issues |
|---|---|---|
Generative AI | AI systems creating text, image, video, code (ChatGPT, DALL-E, Midjourney). | Copyright authorship; training data fair use; output ownership. |
AI-assisted invention | AI as tool helping human inventors. | Inventor disclosure; technical effect demonstration. |
Machine Learning | Algorithms that learn from data. | Section 3(k) patentability; training data rights. |
Blockchain | Distributed ledger; smart contracts; cryptocurrencies. | Section 3(k) technical effect; data immutability. |
NFTs | Non-fungible tokens; digital ownership tokens. | Copyright ownership confusion; trademark issues. |
3D Printing | Additive manufacturing from digital designs. | Patent enforcement; copying physical objects from digital files. |
Quantum Computing | Quantum mechanical principles for computation. | Patent eligibility for quantum algorithms. |
Metaverse | Virtual worlds with digital assets. | Trademark protection; digital twin protection. |
IoT (Internet of Things) | Connected devices. | Standard essential patents; security. |
3. The Indian Statutory Framework
A. Patents Act 1970 — Section 3(k)
Section 3(k) Patents Act "What are not inventions.— (k) a mathematical or business method or a computer programme per se or algorithms;" |
✅ Section 3(k) — the critical "per se" qualifier Section 3(k) was amended in 2002 (effective 20 May 2003) to add "per se" — a critical change. The qualifier means: · Computer programs PER SE (alone, in isolation) are NOT patentable. · Computer programs WITH technical effect MAY be patentable. · Software embodied in a physical product may be patentable. · Algorithm + technical contribution = potentially patentable. India took a position between EU (more permissive) and USA (Bilski/Alice tests). Indian courts have evolved interpretation through: · Telefonaktiebolaget LM Ericsson v. Intex (2015) — first major case. · Ferid Allani v. UoI (2019:DHC:6944) — "technical contribution"/"technical effect"/"technical advancement" test. · Microsoft Technology Licensing v. Controller (2023:DHC:3342). · OpenTV v. Controller (2023:DHC:3305). · Raytheon v. CGPDTM (2023:DHC:6673). · Ab Initio Technology (2024:DHC:5708) — clarifying technical effect for blockchain. · Blackberry v. Asst Controller (2024:DHC:6571). · Priya Randolph v. Deputy Controller (2023) — blockchain. The CRI Guidelines 2025 (29 July 2025) consolidate this jurisprudence into structured frameworks. |
B. Copyright Act 1957 — Section 2(d)(vi)
Section 2(d)(vi) Copyright Act "Definitions.— (d) "author" means,— ... (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created." |
C. Other Critical Provisions
Statute | Provision | Relevance |
|---|---|---|
Patents Act | Section 3(k) | Computer programmes per se NOT patentable (subject to "per se" qualifier). |
Patents Act | Section 6 | Inventor must be human person. |
Patents Act | Section 8 | Disclosure of foreign filings. |
Patents Act | Section 10 | Specifications must enable; AI may not satisfy. |
Copyright Act | Section 2(d)(vi) | "Computer-generated work" — author is person who CAUSES work. |
Copyright Act | Section 13 | Subject matter of copyright. |
Copyright Act | Section 17 | First owner of copyright. |
Copyright Act | Section 52 | Fair dealing exception (relevant for AI training data). |
Trade Marks Act | Sections 9, 11 | Distinctiveness for digital trademarks. |
IT Act 2000 | Section 79 | Intermediary safe harbour. |
Information Technology Rules 2021 | Various | Intermediary obligations including AI labelling. |
4. CRI Guidelines 2025 — The Watershed Document
A. Background
The CRI Guidelines 2025 were released on 29 July 2025 by the Indian Patent Office:
- Replaces 2017 CRI Guidelines.
- Draft Version 1.0 released 25 March 2025.
- Draft Version 2.0 released 26 June 2025 after consultations.
- Final version released 29 July 2025.
- Stakeholder consultations across Chennai, Delhi, Kolkata, Mumbai.
- Apply with immediate effect.
B. Key Innovations
✅ CRI Guidelines 2025 — five key innovations 1. Step-by-step decision frameworks for all four limbs of Section 3(k) — mathematical methods, business methods, computer programs per se, algorithms. 2. Dedicated Chapter (Section 5) on AI/ML/Deep Learning/Blockchain/Quantum Computing with detailed enablement standards and examples. 3. Formal rejection of the novel hardware requirement — software-only inventions not automatically excluded. 4. Clarification that India's business method bar is ABSOLUTE — unlike UK and EP law. Even technically implemented business methods excluded. 5. New abstractness/enablement test for algorithm claims with worked examples on both sides of the line. The Guidelines incorporate key cases: Ferid Allani (2019), Microsoft (2023), OpenTV (2023), Raytheon (2023), Ab Initio (2024), Blackberry (2024) — converting judicial precedents into examination guidance. |
C. The Three-Step Test
CRI Guidelines 2025 establish a three-step test:
- Understand the invention as a whole.
- Determine whether it merely reflects a commercial strategy or instead provides a technical solution.
- Rule on patentability.
5. Key Indian Cases Overview
Case | Year/Court | Significance |
|---|---|---|
Telefonaktiebolaget LM Ericsson v. Intex Technologies | 2015 Del | First major Section 3(k) case. |
Ferid Allani v. UoI | 2019:DHC:6944 | "Technical contribution"/"effect"/"advancement" test. |
Microsoft Technology Licensing v. Asst Controller | 2023:DHC:3342 | Software patent eligibility framework. |
OpenTV v. Controller | 2023:DHC:3305 | Business method exclusion absolute. |
Raytheon v. CGPDTM | 2023:DHC:6673 | CRI examination criteria. |
Priya Randolph v. Deputy Controller | 2023 | BLOCKCHAIN patent eligibility — technical effect. |
Ericsson v. Lava International | 2024:DHC:2698 | Seven-step novelty test. |
Comviva Technologies v. Asst Controller | 2024 | Electronic payment authentication. |
Google v. Controller | 2024 (2 April) Del | Instant messaging patent granted. |
Ab Initio Technology v. Controller | 2024:DHC:5708 | BLOCKCHAIN technical effect clarification. |
Blackberry v. Asst Controller | 2024:DHC:6571 | CRI examination standards. |
ANI Media v. OpenAI | 2024 SCC OnLine Del 8120 | AI training data — judgment reserved. |
Stephen Thaler v. Copyright Office | 2025 Del | AI artwork copyright registration directive. |
6. Government Response
A. Expert Panel — May 2025
✅ Copyright Act Expert Panel (May 2025) In May 2025, the Ministry of Commerce & Industry constituted an 8-member expert panel to evaluate whether the Copyright Act 1957 adequately addresses GenAI challenges. Mandate: · Evaluate authorship and ownership for AI-generated works. · Define "AI-generated works" in the statute. · Clarify accountability mechanisms for AI use. · Address Section 52 fair dealing for AI training. · Consider new Chapter XII-A specifically for AI-generated content. Context: · ANI v. OpenAI litigation pending. · Federation of Indian Publishers actions. · NDTV, Indian Express, Hindustan Times claims. · Need for statutory clarity. Leaked early deliberations (June 2025) suggest: · New Chapter XII-A possibility. · Clearer authorship definitions. · Training data licensing framework. · Coordination with international developments. |
B. DPIIT 2024 Position
The Department for Promotion of Industry and Internal Trade clarified in mid-2024:
- AI developers must seek authorization for copyrighted training material.
- Aligned with Berne Convention obligations.
- Rejected blanket fair use defence under Section 52 for commercial-scale AI training.
- Aligned with EU AI Act and UK IPO consultation papers.
C. MeitY Advisories
Ministry of Electronics and Information Technology (MeitY) issued advisories:
- March 1, 2024 Advisory — labelling requirements for AI-generated content.
- Mandatory prior Government approval for under-tested AI tools.
- Reporting requirements.
- Coordination with IT Act 2000 and IT Rules 2021.
7. International Comparisons
Jurisdiction | Approach | Status |
|---|---|---|
India | Sectoral interpretation of existing statutes; CRI Guidelines 2025; expert panel pending. | Evolving framework. |
USA | Human authorship required; AI cannot be inventor (Thaler). | Restrictive; Copyright Office 2025 report. |
UK | "Computer-generated works" recognised since 1988 CDPA; uncertain whether qualifies. | Open-ended. |
EU | EU AI Act 2024; transparency requirements. | Comprehensive regulation. |
China | More permissive; recent cases protecting AI works. | Most permissive globally. |
Japan | Considering AI-specific framework. | Framework under development. |
Australia | Following UK approach. | Open-ended. |
8. Strategic Considerations
✅ For technology companies — twelve points For AI/ML inventions, demonstrate "technical effect" prominently in patent applications. For blockchain inventions, document concrete technical implementation. For quantum computing, specify qubit architecture and concrete implementation. For software patents, ensure system AND method claims supported by description. For AI training, obtain authorization for copyrighted material. For commercial AI tools, comply with MeitY advisories on labelling. For AI-generated outputs, document human creative input for copyright. For cross-border deployment, comply with multiple jurisdictions. For startups, monitor expert panel recommendations on Copyright Act amendments. For investors, factor in IP uncertainty when valuing emerging tech companies. For agreements, address AI training rights, output ownership, derivative works. For litigation strategy, monitor ANI v. OpenAI judgment. |
🎯 EXAM POINTERS — TOPIC 88
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