Indian intellectual property law for entrepreneurs
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Indian intellectual property law for entrepreneurs

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This material is for PGPSE / CSE students of AFTERSCHOOOL. PGPSE / CSE are free online programme - open for all - free for all - to promote entrepreneurship and social entrepreneurship PGPSE is for......

This material is for PGPSE / CSE students of AFTERSCHOOOL. PGPSE / CSE are free online programme - open for all - free for all - to promote entrepreneurship and social entrepreneurship PGPSE is for those who want to transform the world. It is different from MBA, BBA, CFA, CA,CS,ICWA and other traditional programmes. It is based on self certification and based on self learning and guidance by mentors. It is for those who want to be entrepreneurs and social changers. Let us work together. Our basic idea is that KNOWLEDGE IS FREE & AND SHARE IT WITH THE WORLD

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      • by :
      • DR. T.K. JAIN
      • AFTERSCHO ☺ OL
      • centre for social entrepreneurship
      • sivakamu veterinary hospital road
      • bikaner 334001 rajasthan, india
      • (CSE & PGPSE are free online programmes
      • open for all, free for all)
      • mobile : 91+9414430763
  • 2. My words.....
      • My purpose here is to give an introductory lesson onIntellectual property law and legal system – which will help entrepreneurs. Ideally the government should support entrepreneurs in intellectual property matters Obtaining patents, trade marks should be easy, convenient and transparent. IP law should be small & easy to understand – so that people can implement it by heart. Unfortunately, it is written in a verbose and complicated language, that only experts can understand it. It is really unfortunate that some people feel pride on legal terminology (which contains lot of technical & foreign words, which can easily be replaced by simple words) I shall try to present it in simplified form, and let us pray that some person simplifies the Indian legal system. Let us change the society, change the world. Go with positive spirit. Please pass this presentation to all those who might need it. Let us spread knowledge as widely as possible. I welcome your suggestions. I also request you to help me in spreading social entrepreneurship across the globe – for which I need support of you people – not of any VIP. With your help, I can spread the ideas – for which we stand....
  • 3. What is intellectual property ? Intellectual Property refers to creation of mind such as inventions, designs for industrial articles, literary, artistic work, symbols which are ultimately used in commerce. Intellectual Property rights allow the creators or owners to have the benefits from their works when these are exploited commercially.
  • 4. What is the purpose of trademark? It identifies the actual physical origin of goods and services. The brand itself is the seal of authenticity. It guarantees the identity of the origin of goods and services. It stimulates further purchase.   It serves as a badge of loyalty and affiliation. It may enable consumer to make a life style or fashion statement
  • 5. What is the law relating to design in India ? The first designs legislation enacted in India was the Patterns and Designs Protection Act, 1872. then came Indian Patents and Designs Act, 1911 Now we have Designs Act, 2000.
  • 6. When is a design registrable ? The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new subject matter. It should not be a trademark The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article.
  • 7. Can we get design of building approved under design act ? No designs of industrial plans, layouts and installations are not registrable under the Act.
  • 8. Can a design inside a box be registered under design act ? No the design should be visible on the article. Any design in the inside arrangement of a box, money purse or almirah may not be considered for showing such articles in the open state, as those articles are generally put in the market in the closed state
  • 9. Can Label & Stamps be registered for their design under design act? No Because once the alleged Design i.e., ornamentation is removed only a piece of paper, metal or like material remains and the article referred ceases to exist. Article must have its existence independent of the Designs applied to it.
  • 10. What is the effect of registration of design ? The registration of a design confers upon the registered proprietor ‘Copyright’ in the design for the period of registration. ‘Copyright’ means the exclusive right to apply a design to the article belonging to the class in which it is registered. So get the design registered with Patent Office Kolkata for all the designs that you have
  • 11. What are the penalties for violation of design act ? The culprit will pay Rs. 25,000/- to the registered proprietor subject to a maximum of Rs. 50,000/- in respect of any one design. (penalty in Patent act is Rs. 100000 / imprisonment for 5 years + 5000 per day)
  • 12. Should we first prepare article before applying for registration under design act ? No design can be a new shape which can be applied to a pen thus capable of producing a new appearance of a pen on the visual appearance. It is not mandatory to produce the pen first and then make an application.
  • 13. What is meant by classification of goods as per design act 2000 , Third Schedule ? In the third Schedule of Design Rules, 2001 the classification of goods has been mentioned. The classification is based on Locarno Agreement. This classification is different from the one which is mentioned in Trademark act
  • 14. What are the steps in registration of geographical indicators ? 1. application through legal practitioner 2 preliminary scrutiny 3. show cause notice & submissions (2 months) 4. publications 5. oppostions (in 3 months of publications) 6. clarifications 7. grant of registration
  • 15. Example of geographical indicators ? Bikaneri Bhujia Bhavnagar's bhavnagari
  • 16. What is Budapest Treaty ? It was a treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure done at Budapest on April 28, 1977 as amended and modified from time to time.
  • 17. What are the types of intellectual properties ? The intellectual property is classified into seven categories i.e . (1) Patent (2) Industrial Design (3) Trade Marks (4) Copyright (5) Geographical Indications (6) Lay out designs of integrated circuits (7) Protection of undisclosed information/Trade Secret according to TRIPs agreements.
  • 18.  
  • 19.   What is a trade mark?
    • A trade mark (popularly known as brand name) in laymans language is a visual symbol which may be a  word signature, name, device, label, numerals or  combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.
  • 20. How does trademark help a firm? It identifies the goods / or services and its origin. It guarantees its unchanged quality    It advertises the goods/services It creates an image for the goods/ services.
  • 21. What can be a trademark? New name, work, symbol etc. Ensure that it is not being used by others. These cant be trademarks : Geographic indicators Names of places / city / country Superlative words like the best, perfect etc.
  • 22. How to apply for trademark ? The application should contain the trade mark, the goods/services, name and address of applicant and agent (if any) with power of attorney , period of use of the mark and signature.  The application should be in English or Hindi.  It should be filed   at th appropriate office. Use prescribed forms depending on the nature    of application such as  Form TM-1, TM-2, TM-3, TM-8, TM-51 etc.  
  • 23. What is the fees for trademark registration etc. (in Rupees) ? Application fees = 2500 opposition fees = 2500 search fees = 500 renewal fees = 5000 preliminary advice = 500 delay in restoration = 3000 rectification in trademark = 3000
  • 24.  
  • 25. Does Indian Patent give protection worldwide? Patent protection is territorial right and therefore it is effective only within the territory of India. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries, within or before expiry of twelve months from the filing date in India. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide.
  • 26. Is it possible to file international application under Patent Cooperation Treaty (PCT) in India? It is possible to file an international application known as PCT application in India in the Patent Offices located at Kolkata, Chennai, Mumbai and Delhi. All these offices act as Receiving Office (RO) for International application.
  • 27. Who can apply for a patent? A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.
  • 28. Should application for patent be filed before or after, publication of the details of the invention? The application for patent should be filed before the publication of the invention and till then it should not be disclosed or published.
  • 29. How to submit provisional specification ? For obtaining patent first of all submit a provisional application with Provisional specification describes the nature of the invention to have the priority date of filing of the application in which the inventive idea has been disclosed. Patent office will sent the matter to examiner for examination report. Provisional specification must be followed by a complete specification describing the details of the invention along with a statement of claims within 12 months after filing of the provisional application. Any person can raise objection in 6 months of publication / before grant of patent.
  • 30. Is patent application once filed sent to examiner automatically? No, The examination is done only after receipt of the request of examination either from the applicant or from third party.
  • 31. When can the request for examination be filed? The request for examination can be filed within a period of 48 months from the date of priority or date of filing of the application whichever is earlier.
  • 32. What are the steps in grant of patent ? 1. make application for the grant of patent (online,with fees) & publication (upto 18 months) 2. make a request for examination (in 48 hours to 12 months) 3. examination 4. FER is issued 5. applicant is given an opportunity to correct the deficiencies in order to meet the objections raised in the FER report. The applicant must comply with the requirements within 12 months. 6. pre-grant opposition – and clarify the oppostion (6 months) 7 the patent is granted and notified in the Patent office Journal. 8. post grant opposition – clarify them
  • 33. Is there any fee for filing pre-grant opposition? There is no fee for filing representation for pre-grant opposition? This can be filed by any person.
  • 34. Is it possible to file pre-grant opposition even before examination? Yes, it is possible to file representation for pre-grant opposition even though there is no request for examination has been filed. However, the representation will be considered only when a request for examination is received within the prescribed period.
  • 35. What are the time limits for opposition to patent application? The time for filing pre-grant opposition is 6 months from the date of publication of patent application (sec 11a) The time for filing post-grant opposition is 12 months from the date of publication of the grant of patent in the official journal of the patent office
  • 36. What is the fees for opposition? Pregrant oppostion = no fees post grant opposition = Rs. 6000
  • 37. Where the information relating to patent application is notified? The information relating to the patent application is published in the Patent office Journal issued on every Friday. This is also available in electronic form on the website of the Patent Office
  • 38. What are the contents of the Patent office Journal? The Patent office Journal contains information relating to patent applications which are published u/s 11A, post grant publication, restoration of patent, notifications , indexes, list of non-working patents and notices Issued by the Patent Office relating to Patents, etc..
  • 39. Can one use the words "Patent Pending" or "Patent Applied For"? These words are normally used by the patent applicant to their products after filing his application for patent so that the public is made aware that a patent application has been filed in respect of that invention. Use of these words where no application has been made is prohibited under the Patent law. However, use of such words by the patent applicant does not prohibit the third party to plead as innocent unless the patent number is indicated.
  • 40. How can one find out that an invention is already patented? The person concerned can perform a preliminary search on Patent Office website in the Indian patent data base of granted patent or Patent Office journal published every week
  • 41. What is patent application fees? For individual : Rs.1, 000/- (upto 30 pages thereafter 100 per page) (upto 10 claims, pay Rs.200/- for each additional claim) for a company / legal entity : Rs.4, 000/- upto 10 claims and 30 pages. (If the number of pages exceed beyond 30, Rs.400/- per page. Rs.800/- for each additional claim beyond 10 claims allowed).
  • 42. Is there patent renewal fees also? Yes After the grant of patent, every patentee has to maintain the patent by paying renewal fee every year as prescribed in the schedule I. For first two years, there is no renewal fee. The renewal fee is payable from 3rd year onwards. In case the renewal fee is not paid the patent will be ceased.
  • 43. What is qualification for patent office ? (a) he is a citizen of India; (b) he has completed the age of 21 years; (c) he has obtained a degree in science, engineering or technology from any university AND (i) has passed the qualifying examination prescribed for the purpose; or (ii) has, earlier worked for not less than ten years either as an examiner or Controller (in patent office)
  • 44. Is it necessary to file patent through agent ? No, but if applicant who is not a resident of India then he is required to file either through the registered patent agent or must give an address for service in India
  • 45. Is there any International Depository Authority in India where biological material can be submitted while applying for patent? Yes, there is an International Depository Authority in India located at Chandigarh which is known as Institute of Microbial Technology (IMTECH).
  • 46. Where can you get more details on patent / trademark / copyright / design / geographic indications in India ?
  • 47. What types of opposition can be raised regarding patent ? Pre-grant opposition post-grant opposition
  • 48. Is there any provision in the patent law for early publication? Yes, the usual time is upto 18 months, but the applicant can make a request for early publication in Form 9 along with the prescribed fee. After receiving such request the Patent Office publishes such application within a period of one month provided the invention contained thereon does not relate to atomic energy or defence purpose.
  • 49. What are the main international agreements relating to patent? Convention establishing World Intellectual Property Organization (WIPO) TRIPS Agreement under the World Trade Organization (WTO) Paris Convention for the protection of Industrial Property Dec. 7, 1998. Patent Cooperation Treaty (PCT) Dec. 7, 1998.
  • 51. What is a Patent? A Patent is a statutory right for an invention granted for 20 years to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent. There must be some new method / process / technique for patent
  • 52. What can be patented? An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under section 3 and 4 (agriculture,plant, animal, atomic energy, frivolour invention, rearrangements, science principles etc) of the Act.
  • 53. What is patentable ? i) It should be novel / inventive . ii) It should have inventive step or it must be non-obvious iii) It should be capable of Industrial application. iv) It should not fall within the provisions of section 3 and 4 of the Patents Act 1970.
  • 54. Can we get patent after display in public exhibition ? No Generally, a patent application for the invention which has been either published or publicly displayed cannot be filed. However the Patents Act provides a grace period of 12 months for filing of patent application from the date of its publication in a journal or its public display
  • 55. How to prepare specifications ? The applicant himself or agent has to prepaer specification.It comprises of the title of the invention indicating its technical field, prior art, draw backs in the prior art, the solution provided by the inventor to obviate the drawbacks of the prior art, a concise but sufficient description of the invention and its usefulness, drawings (if Any) and details of best method of its working. The complete specification must contain at least one claim defining the scope of the invention for which protection is sought for.
  • 56. When does the patent office publish application? Every application for patent is published after 18 months from the date of its filing or priority date whichever is earlier. However, following applications are not published. A) when secrecy direction is imposed B) Application which has been abandoned u/s 9(1) and C) Application which has been withdrawn 3 months prior to 18 months
  • 57. What is FER what is its role ? the Patent office issues an examination report to the applicant which is generally known as First Examination Report (FER). Thereafter the applicant is required to comply with the requirements within a period of twelve months from the date of FER. In case, the application is found to be in order for grant, the patent is granted, provided there is no pre-grant opposition. A letter patent is issued to the applicant. However, in case a pre-grant opposition, the further action is taken after disposition of the pre-grant opposition.
  • 58. By what time can a person oppose grant of a patent ? Pre-patent = within six months from the date of publication of the application u/s 11A or before the grant of patent. The grounds on which the representation can be filed are provided u/s 25(1) of the Patents Act 1970. post patent = in 12 months as per sec. 25(2)
  • 59. How can I apply for a patent? A patent application can be filed with Indian Patent Office either with complete specification or with provisional specification along with fee as prescribed in schedule I. In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the application. There is no extension of time to file complete specification after expiry of said period.
  • 60. What is the procedure of application patent in India ? First make an application patent applications are published within one month after expiry of the statutory period of 18 months. In case of request for an early publication, the application is to be published within one month from the date of request complete specifications must be submitted within 1 month of application – otherwise the application will remain cancelled
  • 61. WHAT IS INTELLECTUAL PROPERTY ? creations of human mind and human intellect, this property is called Intellectual property. EXAMPLES writing, softwares (copyright), design, methods, process, etc.
  • 62. What is the impact of WTO on Indian Patent law ? Patents Act, 1970 has been amended in the year 1995, 1999, 2002 and 2005 to meet India’s obligations under the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) which is a part of World Trade Organisation (WTO).
  • 63. How can a person oppose another person getting patent on former's work? If an application for a patent has been published but a patent has yet to be granted, the person may, in writing, represent his case by way of opposition to the Controller of Patents and oppose grant of patent on this grounds.
  • 64. What is infringement of copyright? Only copyright owner (the person who produced the document / wrk) can reproduce the work If any other person without authorisation from the owner exercises these rights in respect of the work which has copyright protection, it is an infringement of the copyright.
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