Intellectual Property Rights By Prof. Dipak V. Shirbhate Lecturer, Department of Production Engineering, VJTI,Matunga,Mumbai-19 www.vjti.ac.in
Intellectual Property Rights
The Concept of Intellectual Property
Different Types of IP
Rationale behind Intellectual Property
Balancing the Rights of Owner & Society
Enforcement of IPR
Issues before us regarding IPR
What is Intellectual Property ?
Piece of Art ?
Invention or Formula ?
Or just an idea?
Any thing created by man’s
Ingenuity, Knowledge & Skill
besides labor and capital.
Concept of Property
Lay mind : Some material object belonging to a particular person.
Concept of Ownership is critical to Concept of Property.
Ownership: Right to Possess, Use & Dispose at the desire of the owner & to exclude others.
Society recognition is must.
Legal Definition : Bundle of rights that the law confers on a person (s) by virtue of ownership and possession of an object.
Types of Property
Two types : Tangible & Intangible
Tangible: Land ,Building etc… referred to as Corporeal Property
Intangible : Copyright, Idea, Innovation etc…referred to as Incorporeal Property
Intellectual Property is Incorporeal Property and it derives its value from ideas.
IP is a dynamic area while corporeal property is a static one.
Classification of IP
IP is generally divided into two categories
a) Industrial Property
Industrial Property : Rights relating to Inventions, Industrial Designs , Trade Marks, Geographical Indication & Appellation of Origin.
Copyright : Rights relating to creation of human mind in the fields of Literature, Music, Art and Audio-Visual works (Related Rights & Neighboring Rights)
Seven types of IP
TRIPS Agreement of the WTO recognizes seven types of Intellectual Property Rights
1.Copyright & Related/Neighboring Rights
2.Trade Marks, Trade Names, Service Marks
6.Layout Designs of Integrated Circuits
TRIPS : Trade Related Aspects Of Intellectual Property Rights
WTO : World Trade Organization
Copyright is granted for original, literary musical, artistic or audio-visual works
The creations of authors, playwrites, composers,artists and filmmakers
It includes rights of reproduction, communication to the public,
adaptation and translation of work
Although originality in expression is a requirement for copyright, the quality of work is not an issue at all.
Copyright subsists the work which is the creation of idea(s);it is not the idea(s) which is protected by copyright,but merely the expression of the idea in the work
Example : Painting/Sunset
Research Paper Subject
Trade Marks/Names/Service Marks
Trade Marks & Service Marks :
Distinctive Symbols of the company
Trade Names :Name of the enterprise that individualizes the name of the company
Both are protected as IP
Trade Mark to be Distinctive not Deceptive
No requirement in law for Quality Standard
Geographical Indications (GI)
It is a sign used on goods that have a specific geographical origin & possesses qualities /reputation solely attributed to place of origin and is protected as IP
A GI is different from a Trade Mark
GI – All producers producing in designated place can use
IPR. It also denotes indication of source & appellation
Trade Mark- Distinguishes Product/Services of enterprise
from others and exclude others from using the trade mark
The ornamental or aesthetic aspect of an article
Serves as a tool for product differentiation
Attracts customers by enhanced visual appeal and become IP to be protected
Applied to wide range of products from industry or handicraft
A Patent is a statutory right granted for a limited period to an inventor in respect of an invention to exclude any other person from manufacturing, using or selling the patented product or from using the patented process, without due permission.
Under the TRIPS Agreement of the WTO
inventions in all fields of Technology
Products or Processes are patentable if they meet the criteria of Novelty , involve an Inventive step and are capable of Industrial Application
Aim : Rewarding Intellectual Creativity for encouraging economic and technological development
Layout Designs-Integrated Circuits
Layout Designs topography) of integrated circuits is relatively new area in IP
Has appeared with computer technology The programming instructions on a computer chip are implemented through a circuitry printed on semiconductor materials. The design of circuitry on the chip requires great investments of knowledge, skills and capital and therefore needs to be protected as IP.
Protected as IP against copying but improved design by reverse engineering is regarded as fair.
Criteria – Original-No Monopoly Right
Undisclosed Information gets recognition as a kind of IP to be protected under TRIPS
It virtually restricts honest practices to protection of trade secrets.
Rationale behind IPR
IPRs are based on three premises :
1.Creative activity culminating in IP can be increased by encouragement but not in adequate quantity without economic incentives.
2.Adequate Economic Benefits as just rewards for creation of IP through grant of Monopoly Rights even if for limited period.
3.The provision of the Global IP regime to ensure economic returns and safeguarding interests of all concerned.
Balancing the Rights of Owner & Society
There can be no absolute rights in IP because all individual rights are subject to the recognition of the rights of other individuals and the rights of the society.
Role of State & purpose of Law : Harmonize conflicting claims and achieve balance.
Protection of Individual Property is important but it is equally important in a democratic polity that the State creates condition and necessary structure for wide spread access to opportunities
Balancing responsibility of the State reflected in the Indian Law
Private Property is strongly respected and legally protected, it is no more a fundamental right
IP & Constitution of India
The constitution of India under entry 49 of Union list of matters mentions about Patents, Inventions, Designs, Copyright, Trade Marks & Merchandise;but it makes no specific reference to IP
However IP as a form of property can be put under Article 300A dealing with property and be entitled to a legal right.
Experts have indicated towards the possible conflicts between IP, especially the Copyright and the constitutionally guaranteed freedom of speech and expression.
The Hon’ble Courts have zealously upheld this fundamental freedom.However such challenge has not yet been mounted.
Enforcement of IPR
India and the TRIPS Agreement : India has to a large extent complied with its obligations under TRIPS through a series of amendments to its existing laws and through new legislations. However the TRIPS agreement leaves some room to deal with various issues at national level such as definition of an invention, exception to exclusive rights, compulsory licenses and others.
New Legislations/Amendments to Existing Legislations
The Trade Marks Act,1999
The Designs Act, 2000
The Protection of Plant Varieties and Farmer’s Rights Act, 2001
The Geographical Indication of Goods
(Registration & Protection) Act, 1999
The Semiconductor Integrated Circuits Layout Designs Bill, 1999
The Patents Act 1970,as amended by Patents (Amendment) Act, 2002
The Copyright Act, 1957 together with International Copyright Order, 1999
All issues regarding IPR in India are governed by these legislations
Issues before Us
What is a patentable Invention ?
“ A new product or process involving an inventive step and capable of industrial application”
What is not patentable ?
Procedure for Obtaining Patent
Who can apply ?
A person claiming to be the true and first inventor of an invention
Filing a Patent Application:
Only one application is filed for one invention along with provisional or complete specification
The Specification must contain :
Title, sufficiently indicating the subject matter
Full & particular description of invention
Details of its operation or use and the method by which it is to be performed
Disclosure of the best method of performing the invention
Claims defining the scope of the invention substantiated by the disclosure
Abstract providing technical information
Declaration as to the inventiorship of the invention
Search for anticipation by previous publication and by prior claim
The search requires investigation for
Patents Already Granted
Already Published or Claimed
Any objection raised by the examiner are to be removed by applicant within 12 months.
Acceptance & Advertisement
Controller of Patents notifies it to the applicant and also advertises it in the Official Gazette for public inspection
From date of advertisement to the date of sealing the patent, the applicant enjoys the privileges and rights as if a patent had been sealed on the date of advertisement except the right of infringement.
Opposition to the grant of Patent
Notice to Controller within 4 months from the date of advertisement on following grounds :
Wrongfully obtained by the inventor
Anticipated in a specification filed for another patent earlier
Publicly known in India before priority date of claim
Not an invention within the meaning of the Act
The information furnished is false
Geographical origin is not disclosed or falsely disclosed
Convention application not filed in India in prescribed time for the same invention in a convention country
Grant of Patent
Where the application for a patent has been accepted without opposition or after disposing the opposition, a patent shall be granted if the applicant makes a request within 6 months of advertisement.
The patent so granted shall be sealed with the seal of the patent office and the date shall be entered in the register.
Rights of Patent
Right to exploit the patent
Right to grant license etc
Right to surrender
Right to sue for infringement
Purposes of Government
For imparting instructions to pupils
Medicine or Drug imported by the Government for its use in hospital, medical institute, Lab, maintained by or on behalf of the Government.
Difficulties Primarily Faced in Creation of IPR in Academic & Research Institute: 1. Lack of knowledge regarding the novelty/innovation of a research work persuade by a scholar with respect to its suitability for creation of IPR.( Patent Search)
2. Absence of systematic planning and organizing of a research programme in reference to filing of patent. - To conceive the part or phases of any developmental work justifying its novelty/innovation .
3. Absence of knowledge regarding the timely disclosure of invention to register the right of inventor- ship/creatorship 4. Lack of idea regarding the type of information, level of technicality and extent of experience /data that can be disclosed or made public by lecturing, publication etc. without harming the interest of the work with respect to its right for IP.
5. Poor knowledge of preparation of technical and legal write-up of a work to justifying its suitability to register as IPR prior to the legal consideration. 6. Non availability of legal staff / cell in most of the academic institutes to prepare and plead the case of IPR.
Immediate measures to be taken : Activation of the system for Development of Awareness, Attitude and Culture for creation of IP
The intellectual property thus vests in a creation of human mind involving knowledge, labor and skill.
It is the result of sustained intellectual application and efforts by inventors/authors/artists
Powerful factor of production and wealth generation
Significant competitive advantage over rivals in the trade and industry
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