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  1. 1. Notes on Laws relating to Intellectual Property rights(IPR):(This is supplementary to the hard copy note already given) WTO which is responsible for the regulation of International trade, is also responsible for the global protection of Intellectual property rights. India is the signatory of WTO and as such it became the member of TRIPS(Trade relating to Intellectual property rights). The reason for enactment of and or amendment to various IPR Laws are to conform to the TRIPS. Salient points under various Acts which are collectively called Intellectual property laws:The Acts which are covered under IPR are as follows:1) The Trade Marks Act, 1999. 2) The Patents Act, 1970. 3) The Copyright Act, 1957 4) Designs Act, 2000. 5) Geographical Indications of Goods(Registration and Protection)Act,1999. 6) Protection of plant varieties and farmers’ rights, Act, 2001. 7) Semi conductor Integrated circuits Layout- design Act,2000. 8) Biological Diversity Act,2002. Trade Marks Act, 1999. Purpose of the Act:- An Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks. What is a trade mark? A trade mark is a visual symbol or sign in the form of a word or a label used for the identification of the Goods or services readily distinguishable from similar goods and services supplied by the others. The new Act came into force on 15-09-2003. The procedure for registration of a trade mark:- An application in writing to the Registrar of Trade marks. A single application can be made for the registration of a trade mark for different classes of goods and services. An application for registration of a trade mark has to be opposed within 3 months from the date of advertisement or such extended period of one month. An application for registration may be refused on the following grounds, namely:A) Absolute grounds for refusal:Trade marks which are - devoid of any distinctive character -marks or indications which( may serve in trade to ) designate the kind, quality, quantity, intended Purpose, geographical indications etc of goods or services. -exclusive marks or indications which have become customary.(however, a trade mark shall not be refused registration, if before the date of application for registration, it has acquired a distinctive character as result of use made of it or is a well known trade mark) -of such a nature as to deceive the public or cause confusion -contains matters likely to hurt the religious susceptibilities of any class or section of the citizens of India. -contains scandalous or obscene matter. -prohibited under the Emblems and Names(Prevention of improper use) Act, 1950. -If it consists exclusively of shape of goods which results from the nature of goods themselves or which is necessary to obtain a technical result or which gives substantial value to the goods.
  2. 2. Nature of goods or services in relation to which the trade mark is used or proposed to be used shall not be a ground for refusal of registration. B) Relative ground for refusal:-the identity or similarity of the trade mark with an earlier trade mark and identity or similarity of goods or services covered by the trade mark having chance of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark. -the trade mark applied for is identical with or similar to an earlier trademark but is to registered for goods or services which are not similar to the goods or services for which the earlier trade mark is registered in the name of a different proprietor. However, the earlier trade mark which is registered for a different goods or service should be a WELL-KNOWN trade mark in India and the use of the trade mark for which an application is now sougnt without due cause, would take unfair advantage of or be detrimental to the distinctive character or repute of the earlier existing trade mark which is registered for a different product or service. Here, the party opposing registration has to raise the grounds of objection during opposition proceedings. -a trade mark shall not be registered if, or to the extent that its use in India is liable to be prevented (a) by virtue of any law, in particular, the law of PASSING OFF, protecting an unregistered trade mark used in the course of trade; or (b) by virtue of a copyright. Here also, the party opposing the registration has to raise the grounds of objection during opposition proceedings. C) Other Grounds for refusal:- A word shall not be registered as a trade mark if is commonly used and accepted name of any single element or a single chemical compound in respect of a chemical substance or preparation or that is a word which is declared by the World Health Organisation and notified in the prescribed manner by the Registrar from time to time as an international non proprietary name or which is deceptively similar to such name. - In case of names and representations of living person or persons whose death took place within twenty years prior to the date of application for the registration of the trade mark, the Registrar may require the written consent of such living person or the legal representative of the deceased person before he proceeds with the application. The trade mark, when registered, DATES BACK to the date of the making of application. What is the DURATION of a Trade mark? The owner of the trade mark gets a perpetual right to its use in relation to the goods and services in respect of which it is registered. The registration is for ten years but may be renewed from time to time perpetually for further periods of ten years. Protection of Trade marks:Trade marks can be protected in the following ways, namely, 1) Infringement Action. 2) Passing Off Action. 3) Criminal Action. Infringement Action:-When a person gets his trade mark registered under law, he acquires valuable rights by reason of such registration. Registration of the trade mark gives him an exclusive right to the use of trade mark in connection with the goods in respect of which it is registered and if there is any invasion of
  3. 3. this right by ANY OTHER PERSON by a mark which is the same or deceptively similar to his trade mark, he can protect his trade mark by an action for infringement in which he can obtain INJUNCTION, DAMAGES OR ACCOUNT OF PROFIT made by the other person. Passing off Action:- Here, the Trade Mark need not be registered. It can be a trade mark or a get up. In “passing off”, the main principle is that no one has any right to represent for trade purposes, his goods or business as being the goods or business of somebody else. What are the reliefs in the suits for infringement or passing off? Injunction and damages or an account of profits together with or without any order for the delivery of the infringing labels and marks for destruction or erasure. Criminal Action:Criminal complaints can be filed in the court of Metropolitan Magistrate or First Class judicial magistrate against accused persons whose whereabouts are known or unknown, charging them, inter alia(among other things) with having falsified a trade mark or applied a false trade mark or a false description to goods or having in possession blocks, plates or other instruments for falsifying trade marks or having in possession for sale or selling goods or things to which a false trade mark or false trade description is applied. Removal of Trade mark:A Trade mark registered WITHOUT ANY BONAFIDE intention on the part of the applicant to use it in relation to those goods AND that there has infact been no bonafide use of the trade mark in relation to those goods up to a date of three months before the date of application for taking off the trade mark from the register or that up to a date of three months prior to the date of application, a continuous period of five(5)years from the date on which the trade mark is actually entered in the register or a longer period has elapsed during which the trade mark was registered and during which there was no bonafide use thereof in relation to those goods or services by any proprietor thereof for the time being. ------------------------Patents Act, 1970 Earlier there was only PROCESS PATENT and no PRODUCT PATENT for drugs, foods and chemicals. Now product patent has also come into existence for drugs, foods and chemicals. The Product patent protection already exists IN ALL OTHER FIELDS. A patent is a right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. A Patent is not granted for an idea or principle as such, but for some article or the process of making some article applying the idea. Application for Patent:Who can apply for patent? 1) Any person claiming to be the true and first inventor of the invention; 2) by any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application; 3) by the legal representative of any deceased person who immediately before his death was entitled to make such an application. The application as above may be made by any of the persons mentioned above either alone or jointly with any other person for ONE INVENTION ONLY before the patent office. Every application for a patent shall be accompanied by a SPECIFICATION describing the invention and shall begin with a title sufficiently indicating the subject matter to which the invention relates. A PATENT SPECIFICATION is the heart and soul of a patent.
  4. 4. What after application for a patent? An application for patent shall not ordinarily be open to public for a prescribed period. If the applicant so desires, the application may be published before the prescribed period by the Controller general of Patents, designs and Trade marks. On the expiry of the prescribed period as stated above, the application for patent shall be published. Upon publication, the Biological materials, specifications, drawings etc., shall be available to the public. A patent is valid for a period of twenty(20) years FROM THE DATE OF PUBLICATION OF THE APPLICATION FOR A PATENT. Why validity of a patent is twenty years from the date of PUBLICATION OF THE APPLICATION? This is because, on and from the date of publication of the application for patent and until the grant of patent in respect of such application, the applicant shall have the like privileges and rights as if a patent for the investigation has been granted on the date of the publication of the application. However, the applicant shall not be entitled to institute any proceedings for infringement until the patent has been granted. On a request by the applicant for the patent or any other interested person, for an EXAMINATION of an APPLICATION, the application and specification and other documents related thereto shall be referred at the earliest by the controller general of Patents, designs and Trade marks to an EXAMINER for making a report to him(ie to he Controller) regarding the following matters, namely:1) whether the application, the specification and other documents relating thereto are according to the requirements of this Act and the rules thereunder. 2) Whether there is any lawful ground of objection to the grant of the patent under the Act in pursuance of the application. 3) A report of the Examiner, after investigation, for the purpose of ascertaining whether a) the invention claimed has been anticipated by a publication made before this application or b) the invention is claimed in any claim of completed specification published after this application but the application for which is made before this application in question. Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the controller against the grant of that patent, on the ground, inter alia, that the applicant for the patent wrongfully obtained the invention or any part thereof from him. On receipt of the report of the Examiner, the Controller may either grant the patent or may require the applicant to make necessary amendments after giving the applicant an opportunity of being heard. Some general information on PATENTS:-The three standard requirements for a patent to be registered are novelty, utility and inventive steps/non obviousness. It should be new, new steps and should be commercially exploitable. -During the term of the patent, the owner of the patent, ie, the patentee can prevent any other person from using the patented invention. After the expiry of the duration of the patent, anybody can make use of the invention, since it becomes a public domain. -A patent is a creation of STATUTE and is therefore territorial in Extent. Thus, a patent granted in one country cannot be enforced in another country UNLESS the invention concerned is patented in that country also. What is infringement? Infringement of patent consists in the violation of any “exclusive rights” of the patentee, namely, to make, use, exercise, sell or distribute the invention in India. Where the invention claimed is an article or substance, the rights of the patentee are infringed by any one who makes or supplies that article or substance commercially for use by others. Where the patent is for a process, the right of patentee is infringed by one who uses or exercises that method or process in India.
  5. 5. Where to file relief for infringement? Action for infringement of a patent must be instituted by filing a suit in the Court having jurisdiction not inferior to that of a District Court. The right to sue for infringement belongs to the patentee. A person who threatens to infringe may also be sued. The burden of establishing infringement is on the plaintiff , ie who has filed a suit. What are the reliefs available? It includes an injunction AND at the option of the plaintiff, either damages or an account of profits. The limitation period for taking action for infringement is three years from the date of infringement. -APPLICATION FOR PATENT ABROAD:- For applying ABROAD, one has to first apply in India and after six weeks to apply abroad. -A Patent is a Monopoly right. - In case of an invention in the Research and Development(R&D) Dept. of a Company, the application for a patent should be made both by the Employer and the employee to avoid future complication in the event of the employee in the R&D department resigns. What is Para IV filing? In case of Para IV filing, the generic manufacturer claims that either his product does not infringe the patent and /or the patent itself is invalid. A successful patent challenge allows the challenger, a 180 days exclusivity in which no other company can launch a generic version. What is “Evergreening” of a patent? When a patent is ending its tenure of Twenty years, there is a natural tendency on the part of the patent holder to extend the patent by applying some cosmetic touches to the patent and then apply to the patent authority to extend the same. In this way he can prevent it from becoming “generic”. However, Indian Patent Law, under Section 3(d) of the Patents Act, 1970, provides that the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus does not entitle a person for a patent or the extension of the patent. ----------------------------Copyright Act, 1957 -A Copyright shall subsist in an original literary work. -How to determine whether a particular piece of work can be a copyright or what are the requirements of Copyrightability? Copyright means the exclusive right to do or authorize others to do certain acts in relation to :a) LITERARY, Dramatic or Musical works. b) Computer Programme. c) Artistic Work. d) Cinematograph film and e) Sound Recording. - How to determine whether a particular piece of work can be a copyright or what are the requirements of
  6. 6. Copyrightability? Copyright protects only what is EXPRESSED and not the IDEA that has been used to express. In India, works are protected as long as there is Original Expression. Originality relating to EXPRESSION OF THOUGHT. Thus, a work not copied from another work is original ie it should originate from the author. It does not mean the expression of Original or Inventive thought. A person who possesses Copyright of a literary work can, inter alia, do the following in respect of a work or a substantial part thereof, namely:a) Reproduce the work in any material form including storing of it in any medium by electronic means. b) Issue copies of the work to the public not being copies already in circulation. c) make any translation of the work or d) make any adaptation of the work. Adaptation includes any use of the work involving its rearrangement or alteration. Whether registration of copyright is compulsory? A copyright is an Unregistered Intellectual property right where the protection is AUTOMATIC and the registration is NOT COMPULSORY but OPTIONAL and not a condition precedent for acquiring a copyright. However, if the author of the Copyright desires to have the Copyright registered, he can make an application in the prescribed form accompanied by the prescribed fees to the “Registrar of Copyrights” for entering the particulars of the work in the “Register of Copyrights”. In the Register of Copyrights, the details such as a)the names or titles of works and b)the names and addresses of authors, publishers and owners of Copyright and such other prescribed particulars are entered. The Registrar of Copyrights shall act under the superintendence and directions of the Central Govt. The advantage of registration of a copyright is that the register of copyright shall be a primafacie (at the first sight) evidence of particulars entered therein. A certified copy of an entry in the Register of Copyrights is taken as a prima facie evidence in all courts without further proof of production of the original. Further, the Registrar publishes in the Official Gazette, all entries made in the Register of Copyrights. How long a copyright lasts? A copyright lasts for a period of sixty YEARS(60) from the beginning of the calendar year next following the year in which the Author dies. In case of a work of Joint ownership, the copyright would last for sixty years from the beginning of the calendar year next following the year in which the last surviving joint owner dies. What is Infringement of a copyright? The following amounts to infringement of a copyright, namely, - Infringement of a copyright is anything done to the prejudice of the exclusive right of the owner of the copyright. - Permits any place to be used for the COMMUNICATION of the work TO THE PUBLIC where such communication constitutes an infringement of the copyright in the work. - when any person sells, hires, distributes, exhibits in public or imports into India, any infringing copies of the work. Here it should be noted that import of one copy of the work for private and domestic use of the importer is allowed. Who administers the copyright Act or who is the Authority for the copyright? The Central Govt., shall appoint a Registrar of Copyrights and may appoint one or more Deputy registrars of copyrights. A Copyright office shall be established for the purposes of the Copyright Act and it shall be under the immediate control of the “Registrar of Copyrights” who shall act under the superintendence and control of Central Government. ---------------------------------------
  7. 7. Designs Act, 2000. What is a design? Expressing a mental conception in a physical form is designing which has become part and parcel of business today. What are the objects of the Designs Act, 2,000? 1) Legal system for protection of Industrial design to be made more efficient. 2) To promote design activity in order to promote the design element in an article of production. 3) also to ensure that law does not give protection BEYOND what is necessary. Design is defined under the Designs Act, 2000 as follows, namely:Design means only the features of 1)shape, 2) configuration, 3) pattern 4) ornament or 5) Composition of lines or colours applied to any article whether in two or three dimensional or in both forms by any industrial process or means whether mechanical, manual or chemical, separate or combined which in the finished article appeal to and are judged solely by the eye but does not include any mode or principle of construction or anything which is in substance a MERE mechanical device, and does not include a) a trade mark b) a property mark c) any artistic work as defined in the Copyright Act. Prohibition of registration of certain designs, namely:a) a design which is not new or original or b) which contains scandalous or obscene matter c) which are not significantly distinguishable from known designs or combination of known designs d) have been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date or where applicable, the priority date of the application for registration. An application has to be made to the Controller. Controller means the controller General of Patents, Designs and Trade Marks. A design may be registered in respect of any or all of the articles comprised in a prescribed class of articles. Where a design has been registered in respect of any article comprised in a class of article, the application of the proprietor of the design to register it in respect of some one or more other articles comprised in that class of articles shall not be refused, nor shall the registration thereof invalidated. Publication of the Designs which are registered:The controller shall, as soon as may be after the registration of a design, cause publication of the prescribed particulars of the design to be published in such manner as may be prescribed and thereafter the design shall be open to public inspection. What is the Tenure of a design? Where a design is registered, the registered proprietor of the design shall have a COPYRIGHT in the design during ten years from the date of registration.
  8. 8. Extension:- On an application being made before the expiration of Ten years, the controller may extend the period of copyright for a Second period of Five years from the expiration of the original period of Ten years. ( ie Ten + Five = Fifteen Years) Infringement of Design:Any person liable for contravention (every contravention) has to pay to the registered proprietor of the design, a sum not exceeding Rs.25,000/- recoverable as a “contractual” debt. The proprietor can also bring a suit for damages for such contravention and for an injunction against repetition. The total sum recoverable cannot exceed Rs.50,000/Miscellaneous matters:Designs Act contains provision for maintaining the Register of designs on Computer. The Act provides for Compulsory registration of any document for transfer of right in the registered design. ----------------------------Geographical indications of goods(Registration and protection)Act, 1999. - In order to protect the interest of both the consumers and producers, the TRIPS agreement has enjoined a duty on all member states to enact a legislation to protect the “geographical indications”. -“Geographical Indication” in relation to goods (goods means any agricultural, natural or manufactured goods or any goods of handicraft or of industry and includes foodstuff) means an INDICATION which identifies such goods as agricultural goods, natural goods or manufactured goods or originating or manufactured in the territory of a country or a region or locality in that territory where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical orgin and in case where such goods are manufactured goods, one of the activities of either the production or of processing or preparation of the goods concerned TAKES PLACE IN SUCH TERRITORY, REGION OR LOCALITY as the case may be. Indication:- It includes (ie it is an inclusive definition) any name, geographical or figurative representation or any combination of them conveying or suggesting the geographical origin of goods to which it applies. There is a register of Geographical Indications(GI). It is in two parts, namely, Part A ,containing particulars of registration of GIs and Part B containing particulars relating to registration of Authorised users. Application for registration of a GI:- S.11 of the Act. Who shall apply? Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in a prescribed form with the prescribed fees. Prohibition of Registration:- Section 9 of the Act. The following GIs will be prohibited from registration, namely:-that which would deceive or cause confusion
  9. 9. -the use of which is contrary to law -that which contains scandalous or obscene matters -that which would hurt religious susceptibilities. The Registration procedure is enumerated in Ss.11 to 14, consisting of application, advertisement of the application, opposition to the registration, actual registration. Once the GI is registered, an interested person can apply for registration as the Authorised user of the GI under section 17. Any person claiming to be the producer of the goods in respect of which a GI has been registered under S.16, may apply in writing to the Registrar for registering him as the Authorised User of such GI. The procedure for registration of a GI also applies for registration an Authorised user of a GI. Duration and the rights conferred by the Registration:The Registration is for a period of Ten (10) years AND it can be renewed from time to time (ie it is a perpetual right). Registration of an authorized user is for a period of Ten (10) years or till the registration of GI(of which he is the Authorised user) expires, whichever is EARLIER . If at the expiration of the time prescribed in that behalf, those conditions are not complied with, the registrar may remove a geographical indication or the Authorised user as the case may be from the Register. Prohibition of Assignment:- Section 24 of the Act. The right to GI cannot be assigned, transmitted, licensed, pledged or mortgaged. However, the right of the Authorised User devolves on his successor in title. Infringement and Action for infringement. Section 22 of the Act. - An Unauthorised user using a registered GI a) by any means in the designation or presentation of goods suggesting that such goods originate in a geographical area OTHER THAN THE TRUE PLACE OF ORIGIN. b) in such a manner which constitutes an act of unfair competition including passing off in respect of registered GI. Proceedings can be instituted to prevent or to recover damages for the infringement of a registered GI. -------------------------------------Protection of Plant varieties and Farmers’ Rights Act, 2000. Protection of Plant varieties either by “patents” or by an effective “sui generis (of its own kind, unique) system” or any combination thereof. Objectives:1) To protect and benefit the breeders of new plant varieties. 2) To protect and benefit the farmers as cultivators and conservers of traditional local plant varieties which may be used in the development of new varieties and 3) To encourage the growth of seed industry through domestic and foreign investments so as to ensure supply of high quality seeds and planting materials to farmers. How the right of breeders are protected? The rights of the breeders are protected by granting them a monopoly to use and sell the seeds and planting materials of the new plant varieties evolved by them through a system by which they are granted registration. Such a registration is equivalent to a patent granted to the inventor in respect of manufactured goods. Those who use the new plant varieties for purposes of business ie for the production and sale of seeds and other planting material have to take a license from the breeder by paying him fees which may be treated as
  10. 10. Royalty. Who is a breeder? Breeder means a person or group of persons or a farmer or group of persons or any institution which has bred, evolved or developed any variety. Who can make an application for registration under the Act? Section 16 of the Act gives the types of persons who can make an application for registration under the Act, namely, -Breeder, successor or assignee of breeder- any farmer or group of farmers or community of farmers-any University or Publicly funded institution. Criteria for making an application under the Act:1) Novelty:- Such a variety has not been sold or disposed off. 2) Distinctiveness:- clearly distinguishable by atleast one essential characteristics from any other variety. 3) Uniformity:- Uniformity in its essential characteristics(subject to variation that may be expected from the peculiar features of its propogation). 4) Stability:- ie its essential characteristics remains unchanged after repeated or in the case of a particular cycle of propagation, at the end of such cycle. Tenure:The certificate of registration shall be valid for - Nine(9)years in case of trees and vines. Six(6)years in case of other crops may be reviewed and renewed further, on payment of such fees, as may be fixed by the rules so that the total period of protection will not be more than 18 years in case of trees and wines and 15 years in case of other crops. -------------------------------------------Semiconductor Integrated circuits layout-Design Act, 2002 [SICLD ACT,2002] Semiconductor Integrated Circuits or Semiconductor IC. What is the object of the Act? It provides protection to Semiconductor IC Layout designs and matters connected therewith or incidental thereto. What is a semi conductor IC? Semiconductor IC means a product having transistors and other circuitry elements which are inseparably formed on a semi conductor material or an insulating material or inside the semi conductor material or an insulating material or inside the semi-conductor material and designed to perform an electronic circuitry function. Every IC has a number. What is a transistor? It is a semi conductor device with three connections capable of amplification in addition to rectification. In normal room (lower temperature), semiconductor acts as an insulator. If you increase the temperature, it will conduct electricity. Semiconductor is an element like Gold, Germanium (a grey crystalline element with semi conducting properties resembling silicon) and silicon are main components of semi conductor. Layout design:- what is a Layout design? Layout means a) the way in which something, esp., a page is laid out and b) a thing set out in a particular way.
  11. 11. “Lay out design” means a layout of transistors and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit. What are the rights conferred on the registered proprietor of the Lay-out design? The SICLD Act gives to the registered proprietor of the layout-design, the exclusive right to use the layout design and obtain relief in respect of infringement. It may be noted here that the registration of a layout design does not give monopoly rights but gives right to prevent infringement of the registered layout during the period of registration What constitutes infringement under the Act? Reproducing, importing, selling, distributing the IC layout design for commercial purposes only constitutes infringement What are requirements to get protection under the Act? -originality -should not be commercially exploited -distinct from the others already existing in the market. What is meant by commercial exploitation in relation to semi conductor integrated circuits layout design? Commercial exploitation in relation to semiconductor integrated circuits layout-design implies acts such as sell, lease, offer or exhibit for sale or otherwise distribute such semiconductor integrated circuit for any commercial purpose. Note:- A design not exploited commercially for more than 2 years from the date of registration of application shall be treated as commercially exploited for the purpose of this Act. What is the justification for protection of Semiconductor integrated circuits? ICs are the base of electronic revolution. Lot of investment and R&D is required for creation of new layout. This high investment and risk associated, forms a barrier for new entrant. However, when it comes to copying, it is the easiest job in the world. It can be copied by merely taking photograph of each layer of integrated circuits. Duration:- The term for an IC layout design protection is ten(10)years from the date of filing. The registration of a layout design shall be only for a period of ten years counted from the date of filing of an application for registration or from the date of first commercial exploitation anywhere in India or any country, WHICHEVER IS EARLIER. .Who is the Authority under the Act? The Central Govt., may, by notification in the official gazette appoint a person to be known as the Registrar of Semiconductor integrated circuits layout design. There shall be established a registry which shall be known as the Semi-Conductor Integrated Circuit Lay out design registry. Who can obtain protection of Lay-out designs under the SICLD Act,2000? Any person who a) claims to be the creator of a layout design who desires to register it b) is an Indian national or national of a country outside India, which accords to citizens of India similar privileges as granted to its own citizens in respect of registration and protection of layout-designs and c) has principal place of business in India or if he does not carry out business in India, has place of service in India can apply for protection of layout-designs under the SICLD Act, 2000. ---------------------------------------------Biological Diversity Act,2002
  12. 12. Biological = Relating to Biology or living organisms. Biology = the scientific study of living organism. Organism = a) an individual, animal, plant or single celled life form. B) a whole made up of parts which are dependent on each other. Biological Diversity encompasses the variety of all life on earth. With only 2.5 percent of the land area, India already accounts for 7 to 8 per cent of the recorded species of the world. India is equally rich in traditional and indigenous knowledge, both coded and informal. The stake holders in Bio diversity include the Central Govt., The State Govt., Institutions like local self Govt., scientific and technical institutions, non govt., organizations, industry etc., Communities are not stake holders in the Bio diversity. The object of the Act is to A) regulate access to biological resources of the country with the purpose of securing equitable share in benefits arising out of the use of (1) Biological resources and (2) associated knowledge relating to biological resources. What are Biological resources? Biological resources means plants, animals and micro-organisms or parts thereof, their genetic (relating to “genes or heredity” ) material and by products, excluding value added products with actual or potential use of value, BUT DOES NOT INCLUDE HUMAN GENETIC MATERIAL. B) To conserve and sustainable use of Biological Diversity. Biological Diversity means variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco systems. C) To respect and protect KNOWLEDGE OF LOCAL COMMUNITIES related to Bio Diversity. D) To secure sharing of benefits with local people as conservers of biological resources and holders of knowledge and information relating to the use of biological resources. E) Conservation and development of areas important from the standpoint of biological diversity by declaring them as Biological diversity heritage sites. F) Protection and rehabilitation of threatened species. G) Involvement of institutions of self govt. in the broad scheme of the implementation of the Act through constitution of committees. Under this Act, no foreigner or an Indian who is Non-resident or an Indian in association with the Foreigner can get any Indian biological resource without permission. It virtually creates a ban on transport across the border any Indian biological resource. This ban and regulation is restricted to the use of Indian biological resource by others for research or for commercial utilization or for bio survey and bio-utilization. Collaborative research projects are exempted if such collaborative research projects are approved by the C.Govt. and are drawn up as per the policy guidelines specified by the C.Govt. What is bio prospecting? Bio prospecting means exploration of wild plants and animals for commercially viable genetic and bio Chemical resources.
  13. 13. What is Bio Piracy? Bio piracy means misappropriation of folk wisdom of indigenous people by corporate/pirates to locate and understand the use of medical plants and use this knowledge commercially and exploit it while the indigenous people who made it all possible receive little or nothing in return. UN Convention on Bio diversity 1992 (held in Rio de janerio) is a land mark in the environment and development field as it takes for the first time a comprehensive rather than sectoral approach to the conservation of Earth’s Bio diversity and sustainable use of biological resources. Different Boards under the Bio diversity Act, 2002:1) National Bio diversity Authority(NBA), a body corporate with a perpetual succession. S.19 provides for approval by NBA for undertaking certain activities, namely -for obtaining any biological resource occurring in India. -for applying for patent or any other form of intellectual property protection. 2) State Biodiversity Authority(SBA) 3) Bio diversity management Committees (BMCs) MBAs and SBAs are required to consult the concerned BMCs on matters related to use of Biological Resources and associated knowledge within their jurisdiction. How can traditional knowledge be protected? Protection of Traditional knowledge can be effected by protecting them under the heads of Intellectual Property law like copyright, patents, Trademarks, Industrial design protection, Geographical indication and appellation(formal name or title) of origin and through the laws of unfair competition. ___________________________________ Trade secrets:What are Trade secrets? Any information which is of commercial importance in which skill and labour are involved for development AND which is not ordinarily available to the public at large is broadly denoted as “confidential information”, meaning confidential information is also known as “trade secrets”. Confidential information is characterized by the obligation on the recipient of the information than by any INHERENT right attaching to the information or the owner of the information. Examples:- Chemical formulae, manufacturing process, financial information, machinery, devices, Computer programmes, source codes, strategic plans, designs, customer lists, discounts given to Customers, compilation of information, supplier information, business development strategies etc., In India, there is no legislation to protect Trade secrets. Basis for protection of confidential information:Courts have regarded “confidentiality” as an attribute of ingenuity, skill and labour and have condemned those who have reaped what they have not not sown or try to misuse the information given to them in confidence. What is regarded as secret is not so much the end product, but the skill and labour, time and effort that is involved in its evolution or development.
  14. 14. Trade secret and Patent, how different? - patent is for an invention which is useful and “non-obvious’ to those in that field of art. “only after Disclosure to Govt., that a patent is granted. Confidential information is primarily founded on non-disclosure and on an obligation to keep information received confidential. - Confidential Information, unlike patent, need not be novel or new in its strict terms to qualify as protectable Confidential information. All that is required is that the information must not be known to those in business, should have commercial value and be maintained as a secret with an obligation on the recipient to keep it secret. - While patents fall in public domain after a certain period (20 years), there are instances, wherein trade secrets have been maintained secret for several years, example, COKE FORMULA. When Trade secret route is used? Trade secret route is used, when:-Patents are unavailable(ie the invention is not patentable) -Pending grant of Patent -Patent enforcing mechanisms are weak. -Part of technology can easily be kept secret. -Trade secrets or Confidential information can be used together with patents or in isolation. What are the strategies to protect and maintain trade secrets:- non-disclosure agreement - However, mere paper contracts are not sufficient because it must be proved that efforts were taken keep the information confidential. _______________________________ .