Author Archives: Anand Mahurkar

Understanding Originality, Innovation and Invention

Aim of this article is to make readers understand important terms such as originality, invention and innovation and the subtle differences among them.

A person, very passionate about inventing solutions to problems in society once came to meet me. He said that he had invented something fantastic which was the best answer to many health and hygiene related social issues. He was insistently explaining that it was for the first time somebody had come up with such a solution. He added that after multiple searches through the internet he found out that there was not even a single attempt to make such a product in the past. I realized that he was trying to tell me that he had developed a novel product. Searching through the internet, I could easily sense that it was something that we (as IPR lawyers) would have found already existing after doing a detailed “prior art search”, and then we would be in a position to tell him that he had ‘invented’ something which was pre-existing and well known in the world.

My words to that effect fell on his deaf ears as he was in no mood to hear that. That is usually the case because the passion about his idea makes a person blind to the world. Therefore I told him a small but interesting story so that he could understand where his invention would stand over the known prior art.

There was a kid studying in nursery and enjoying life. His teacher sent a note to his parents notifying them about the annual social gathering in their school. Immediately after receiving the note, his mother approached the class teacher and wanted her kid to perform in a group dance. They started practicing and the D-day came. His parents were sitting in the auditorium of the school and they were waiting for the next performance of their child in the group dance. Now this kid is on the back stage along with other kids of his age. Typically there are curtains which are closed before the program starts. The bell rings and a person on the back of the curtains pulls a string so that the curtains move in opposite directions and audience can see the opened stage. The bell rang and while the person was pulling the string and the curtains were travelling in opposite directions the kids were watching it. He was astonished to see this magic for the first time in his life. Now in this particular case, the kid was a very sensitive to the technology in the surroundings and he could not ignore this event like any other kid. He was just asking himself how was it possible to move the curtains by pulling a string. This group received a big round of applause and the kids started dancing on the music but our kid didn’t participate in the dance. He was just thinking about the activity of opening the curtains by pulling a string. He was lost in his own world and started finding the answer. Everybody was trying to cheer that kid to make him dance. But alas!

Now ….fast forward. This kid is now in fourth standard of his school. One fine morning he starts screaming with joy and calls his mother to show her a surprise. What had happened was very interesting. His mother had given a compartment to this boy which was positioned in a wall, in which he could keep his books and stationary articles. He had developed a curtain and string mechanism to cover that compartment and open it by pulling the string. The mother came and saw the successful demonstration of his magical mechanism. She was elated and appreciated her child and subsequently went on for another job. The kid was a little disappointed because he thought that what he had demonstrated was a grand effort and he deserved much more than just simple appreciation for it. The boy was expecting something big from his mother.

Now if we see this carefully, the mother was right on her part and the kid was also correct on his part. Let us see what had happened in reality. The kid developed his own mechanism after a lot of thought process and efforts. It was a landmark development for him. However, for the mother it was just one more curtain on a string, a thing that she had seen multiple times in her life. She already knew it. So her reaction was understandable. She just realized that the boy was on the right track and might have a good future. For the kid, as he had developed the mechanism without any reference it was his own work. He did not know the rest of the world and what was the state of the art. He was just an eight year old boy who had created something useful on his own.

If we see this as a third party, it will be evident that the kid was ‘original’. He just knew the problem and not the solution to it. He took a few years to solve the problem. So the solution which he came up with was a great find in itself, but it was just an original solution. It was not THE original curtain opening mechanism that was made for the first time on this globe.

So the learning is that if you make something on your own then you might come out with an original solution in the form of a product or a process. So you are in the category of “originality”.

If however your creation is an original solution for the very first time in the world then it may shift you to the category of an “inventor” because you made an “invention”. So how do you qualify as an inventor then? An inventor is someone who invents an original product or a process or both, for the first time in the world and that product/process is not obvious for a person having ordinary skills in the field of the invention. So mere originality is not sufficient to qualify as an inventor, and in addition to originality you have to be the first one to create that product/process in the world which makes your product/process Novel. Here the concept of novelty is very important. Novelty is acquired by making an original product/process for the first time in the world.

Making an original and new product/process which would not be obvious for a person having ordinary skills in the field (art) would qualify for an “invention”. It may happen the certain product/process meets the criteria of novelty (original and new) but doesn’t qualify for non-obviousness then we can say that such a product/process is original and novel but not an invention. It is just an “innovation”

Originality: Product/process created on your own (without copying any other work)

Novelty: Original and for the first time in the world

Invention : Novel and non-obvious over the prior art

Innovation: Original and novel but obvious for a person having ordinary skill in the art. It generally adds value to the existing products/processes.

Challenges in Cyber Forensics and Cyber Crime Investigation

The cyber forensic ultimately helps in the evidence management to prove a crime. The ultimate aim is to prove that the evidence provided to the court is the evidence collected from the place of commissioning of the crime. Challenges in Cyber Forensic Investigations can be divided in to two classes:

  1. Technical
  2. Human Factor

Technical Limitations

  1. Documentation of all action is required
  2. Preservation of evidence is expensive
  3. Swift action to collect electronic audit trails
  4. Resources are required such as software and hard ware
  5. Time – hard drives are getting
  6. Authenticity of the evidences is highly questionable
  7. The process is time consuming
  8. There are no standards of the forensic examination
  9. Misconceptions and lack of awareness
  10. Maintain the secrecy and the integrity of the data is very difficult
  11. The software are very costly
  12. Difficult to identify the originality of the hardware and software as each device is combination of multi-technologies.

Human Factor:

  1. There is scarcity of the experts in this field
  2. There is a need of consist work for long hours which is difficult
  3. Training of the software is not readily available
  4. Lack of awareness of maintaining the evidences on the crime scene and or in public domain

Legal issues in cyber forensics:

  1. Deciding the jurisdiction is one of the most important issues in computer forensic.
  2. Maintaining the integrity of the evidences is very difficult as it has to pass though through a chain of authorities.
  3. The crimes are mostly cross border hence it is very difficult to initiate the action against the criminals.
  4. There is integration of various laws for example, IPC, CPC, Evidence Act, IP laws and Cyber laws in cyber forensics
  5. The laws in various countries are different and there is no harmony.
  6. The police has limited language of the cyber law hence there is almost no cooperation from them for search and seizure from the crime scene.
  7. There is involvement of constitutional law when comes to privacy, search and seizure
  8. There is application of property laws when it comes to IPR issues
  9. Identity management in the form of digital signatures the the contract act is also involved in the cyber forensics
  10. When there are issues related to torts such as tresspass, negligence and defamation etc then the cyber forensic is again a task.
  11. As far as evidences are concerned the accuracy of presentation, and preserving the evidence in the best more and presenting to the court is one important legal issue

Cyber Crimes and Types of Cyber Crimes

Cyber-crimes are crimes committed in the virtual world with the help of computers, laptops, mobile phones, tablets or any other electronic devices. It is gaining illegal access or harming other computers or computer networks. Different types of cyber crimes are as follows:-
1. Hacking:
Hacking is where a person obtains illegal/unauthorized access of other computer systems, computer networks or personal information. It is seen that the hackers mostly target websites of various Government so as to access confidential information, data etc. This also includes Web Hijacking wherein the owner of the website does not have any control or access to his own website. The hacker controls the website and uses the website either for posting disturbing images, pornography, provoking or disrespecting other people’s emotions or disrespecting other countries etc. It is to be noted that as per Section 43(a) and Section 66 of the Information Technology Act, 2008 hacking is a punishable offence. Many must have remembered hacking events of portals of Yahoo!, eBay, Amazon by Michael Demon Calce (Mafia Boy) in the year 2000. Michael used denial of service attack technique and he was behind bars when he was 15. India’s famous telecom company BSNL also felt prey to hacking in the year 2012 by a group of hackers.

2. Cyber Terrorism:
Cyber Terrorism is caused generally when the hacker hacks the website and posts religious, political or on similar objectives threats, hatred or violent messages against the neighboring/rival countries to induce terrorism, harm or fear in the people.

3. Cyber Stalking:
Cyber stalking is staking a person in the virtual world. A person continuously annoys, threatens, harasses or terrorizes people or a group of people on the internet. Majority of the times women are stalked or harassed by men. Ritu Kohli case is famous in this regards. At that time the IT Act was not in force. Hence the complaint was lodged under the Sec 509 of IPC ()

4. Spamming:
Spamming is sending e-mails or messages to others n number of times, overloading the networks bandwidth.

5. Cyber Pornography:
Women and children are the victims of cyber pornography wherein they are exploited in the virtual world. Adults with wrong intension send photos and/or videos explicitly over the internet on account of sexual attraction. Children are most simple targets of pedophiles for sexual gains. Cyber pornography does include pornographic websites/magazines/broadcasting/publication over the internet or intranet etc.

6. Phishing/ Web Spoofing:
In this the attacker creates a fake website which looks similar or identical to the original website and obtains your username, password or credit card details or bank details. Logging onto such website can be controlled by using more secured way of accessing websites with the secured protocol. It is important to note that the a secured website contains ‘https’ mentioned on the URL for safe streaming. HTTPS does mean trusted website.

7. Password Sniffers:
These are programs which keep a record of the names and the passwords you enter in exposing the details and password protected documents and get hold of private information and details.

8. Software Piracy:
Software piracy is theft of the software wherein the person uses pirated software or counterfeits the software.

9. Denial of Service Attacks (DoS Attack):
This includes bombarding a web server in order to crash thereby unable to perform its services. These are basically targeted to a specific computers, there is another type of Denial of service attack also known as Distributed Denial of Service (DDoS) attack in which there are many offenders widely and geographically spread over the countries.

10. Source Code Theft:
Source code is an accumulation of programming instructions for software development companies. The offender is usually an employee of the company.

11. Trojan/virus or worm Attack:
Trojan/virus or a worm is where the person sends a victim a virus via e-mail, messages or as attachments. Viruses terminates electronic information. Viruses can be masked with the attached images, greeting cards, audio or video files. Worms mostly eat all the computer’s memory and space.

12. Credit Card Fraud:
The victim’s credit card details are taken from the databases and used for booking airline tickets, online shopping or other e-commerce transactions.

13. Online Gambling and online sale of illegal articles:
Online gambling is legalized in a lot of countries. In India online gambling is illegal. There is also online illegal sale of drugs, weapons, wildlife etc. There are websites especially for selling the prescription of the drugs.

14. Crimes relating to Electronic Signatures:
A person misrepresenting to obtain an electronic signature certificate or who issues a false electronic signature certificates is punishable crime under Section 71 and 73 of the Information Technology Act, 2008.

Cyber Forensics and Crime Investigation

Cyber forensics is a challenging field which has been evolving in the last two decades in India with the rise of use of technology and tech gazettes. Forensics analysis for collection of evidences was in use for assisting the police and for the criminal investigations in the past also, however, it was limited to scientific analysis and understanding. With the advent of electronics, telecommunication, mobile phone technology, and the computerized systems in business, Government and personal front a big portion of life of almost every individual is occupied by the computer based technology. Obviously there is a drastic increase in the commission of crimes using the computer based crimes in the virtual world or crimes using the cyber space. Most of the countries have introduced their cyber laws to take care of the cyber crimes. India did introduce the IT Act 2000 which takes care of almost all cyber crimes in association with the Indian Penal Code. The role of cyber forensic is to gather, analyze, and prove the crime. In the view of the big spectrum of  cyber crimes like hacking, cyber terrorism, Cyber stalking, Spamming, Cyber pornography, Phishing, Spoofing, Code theft, Worm attacks, Credit card frauds etc., the role of cyber forensic is very crucial in the investigation of the crime and further securing producible evidences in front of the court without affecting the originality of the evidences. Cyber forensic is very much important because without it the cyber crimes may not be proved and the criminals may not be punished.

It is really important to understand meaning of the terms cyber forensic and crime investigation. As cyber forensic has come in the discussion in the recent years, let’s consider crime investigation first to establish its most commonly interpretation.

  1. It is well known to a common man that criminal investigations are carried out to find out information about a crime or a criminal activity. A crime is an act against the law that is known to be prohibited by law. Such act if commissioned against the public then it becomes punishable by law. There are two important things in a crime from the point of view of investigation such as the person committing it and the intension or motive behind it. Generally criminals tend confess after the criminal investigations, however, the investigation helps to find out or to establish suspects involved in commissioning the crime or the criminal act. The crime is social and economical phenomenon as discussed above which involves committing legal wrong that follows legal proceedings that results in to punishments.
  2. Cyber forensic involves two terms such as cyber and forensic. The term cyber denotes the virtual space and the information based space that is defined using computers in which information in the form of data, symbols, pictures exists. It can be called as the space where the computer programs work and data is processed. Whereas forensic involves collecting, analyzing and examining information about a past event to be produced in the court of law. However, cyber forensic is a scientific process that involves recovering evidences from digital medium. It is also termed as preservation, identification, extraction, and documentation of computer evidences stored in a hard disc of a computer system. One can say that it is a process of examination of computers, cyber space, electronic devices etc. for gathering evidences.
  3. The main role of Cyber forensics is to collect evidence from the computers’ hardware or software, computer system and computer network from the crime scene. Cyber forensics may include cracking the password protected information or files, recovering the deleted data, observing the computer, preserving the digital evidence, search the database, tracing of the IP address etc. These evidences are used to catch hold of the culprits or the offenders. One must take precautions while collecting the digital evidence is to collect evidence in a manner accepted as per the court’s rules and regulations, the authenticity of the evidence and the totality of the evidence as well. Any error in collecting the evidence it might adversely affect an innocent person. The computer which is to be scanned should be treated with care as it might contain viruses, logic bombs, booby traps and so on as it can destroy important information or data in it.
  4. As it is established now that cyber forensic is the process of recovering/gathering evidences from the digital media, it would be appreciated that cyber forensic has very important role of detection, and establishment of evidences of the cyber crime. So it may involve so many other allied activities such as retrieving, analyzing, preservation, identification, presentation and detection of data that has been digitally stored on to the computer.
  5. There is another side of cyber forensic which is a positive and protective side of cyber forensic. It also involves data security, preventing data theft, security implementation, prevention of unauthorized access, prevention from cyber attack, prevent phishing, virus attach and prevent hacking.
  6. There are cyber forensic experts who can take such responsibilities to protect systems in the Government and private sectors also. Although police will help people in the investigation of the cyber crime by using cyber forensic, however, one can take preventive measures for the cyber security and even in the investigation of cyber crime.
  7. A new community is rising in India and abroad termed as Cyber Forensic Experts who assist police and public to investigate the Cyber Crimes. Such a person needs diverse techno-legal knowledge and experience. He should know the computer operating systems, computer hardware, networking, in addition to legal aspects of cyber law, legal issues, responsibilities, and last but not the least ability to work congruently for a number of hours during the investigation processes.
  8. It will be evident from the activities and responsibilities of a cyber forensic expert that how important is the role of cyber forensic in the criminal investigations involving cyber crimes. They recover data from a given media. It is to be noted that they have to recover the deleted data many times. In addition they recover data after formatting, virus attacks, and even password protected files. Further, they have to recover data from broken hard ware, damaged hard discs, wiped out files, data without the properties of the data files etc. There is other kind of roles such as finding alternative sources of data recover from the computer systems under investigation. Banking fraud investigation, phishing, cyber stalking are some of the challenging investigations in cyber forensics.
  9. Cyber forensic experts use various tools for data recovery. One of such most talked tool is EnCase. It is a forensic data acquisition and analysis program specifically for Windows platform assisting legal framework, specifications and requirements.

It is seen that the cyber forensics establishes if the computer systems or the electronic devices under his custody contain evidences, off course, in the scope of the investigation. Then accessing and understanding the contents of files, data and the time of creation of them. Then acquire the data, authenticate it and build a case out of the available resources. A person with ordinary using ability of computers, electronic devices, or mobile phones will appreciate that such investigation needs diverse experience, knowledge and ability to apply that to practice. The role of cyber forensic is so important that without it one may not establish the case and punish the criminal.