Intellectual Property Rights

Introduction

Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names, and images used in commerce. Intellectual property has increasingly assumed a vital role with the rapid pace of technological, scientific, and medical innovation that we are witnessing today. Moreover, changes in the global economic environment have influenced the development of business models where intellectual property is a central element in establishing value and potential growth. In India, several new legislations for the protection of intellectual property rights (IPRs) have been passed to meet the international obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Patents And Patent Act

A patent in relation to inventions is an exclusive right granted by the Government to the patentee, in exchange for full disclosure of his invention, for excluding others from making, using, selling, importing the patented product or process producing that product for those purposes.

Indian Patent Act

The Patent Act in India was implemented in 1970 which came into force on 20th April 1972 and extended to the whole of India. This Act was amended in March 1999 and June 2002 to meet India’s obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which forms part of the agreement establishing the World Trade Organization (WTO).

Definitions of the Indian Patent Act

Intellectual Property Rights are According to the Patents Act,

Assignee includes the legal representative of a deceased assignee, and references to the assignee of any person include references to the assignee of the legal representative or assignee of that person.

Controller means the Controller General of Patents, Designs, and Trademarks.

An exclusive license means a license from a patentee which confers on the licensee, or on the licensee and the persons authorized by him, to the exclusion of other persons (including the patentee), any right in respect of the patented invention, and “exclusive license” shall be constructed accordingly.

Food means any article of nourishment and includes any substance intended for the use of babies, invalids, or convalescents as an article of food or drink.

Invention means any new and useful:

1. Art, process, method, or manner of manufacture.
2. Machine, apparatus, or another article.
3. A substance produced by the manufacturer and includes any new and useful improvement of any of them and an alleged invention.

Medicine or Drug includes

1. All medicines for internal or external use of human beings or animals.
2. All substances are intended to be used for or in the diagnosis, treatment, mitigation, or prevention of diseases in human beings or animals.
3. All substances are intended to be used for or in the maintenance of public health, or the prevention or control of an epidemic disease among human beings or animals.
4. Insecticides, germicides, fungicides, weedicides, and all other substances intended to be used for the protection or preservation of plants.
5. All chemical substances are ordinarily used as intermediates in the preparation or manufacture of any of the medicines or substances above referred to.

Patent means a patent granted under this Act.

A patent agent means a person for the time being registered under this Act as a patent agent.

Patented article and Patented process mean respectively an article or process in respect of which patent is in force.

Patentee means the person for the time being entered on the register as the grantee or the proprietor of the patent.

Inventions which are Patentable: An invention to be patentable should be technical in nature and should meet the following criteria:

• Novelty: The matter disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.
• Inventive step: The invention is not obvious to a person skilled in the light of the prior publication/knowledge/document.
• Industrially applicable: Invention should possess utility so that it can be made or used in the industry.

Inventions not patentable: The following are not inventions within the meaning of this Act and hence are not patentable.

• An invention that is frivolous or which claims anything obviously contrary to well established natural laws;
• An invention, the primary or intended use or commercial exploitation of which would be contrary to which causes serious prejudice to human, animal, or plant life or health or to the environment;
• The mere discovery of a scientific principle or formulation of or discovery of any living thing or non-living substance occurring in nature;
• The mere discovery of a new form of a known substance does not result in the enhancement of any 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 unless such known process results in a new product or employs at least one new reactant;
• A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
• The mere arrangement, rearrangement, or duplication of known devices each functioning independently of one another in a known way;
• A method of agriculture or horticulture;
• Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic, or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or increase their production or propagation of plants and animals;
• Plants or animals in whole or any part thereof other than microorganisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals;
• A mathematical or business method or a computer program;
• A literary, dramatic, musical, or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
• A mere scheme or rule or method of performing a mental act or method of playing the game;
• A presentation of information about Intellectual Property Rights ;
• The topography of integrated circuits;
• An invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components.

Types of Patent

The following types of patents are granted under the Act:

1. An ordinary patent.
2. A patent of addition for improvement in or modification of an invention for which a patent has already been applied for or granted.
3. A patent was granted in respect of a convention application filed under section 135 of the Act.
4. A product patent for a medicine or drug as provided by the Patents (Amendment) Act, 1999.

Procedure for Getting a Patent

An application for an ordinary patent including that for a product patent may be made by the person claiming to be the first or true inventor, his legal representative, or his assignee, either alone or jointly with any other person. An application for a patent of addition may be made only by the applicant for the original patent to which it is an addition if the application for the original patent is pending or by the registered proprietor of such original patent if the patent has already been granted. A convention application may be made by any person who has made the application for patent in respect of that invention in a Convention country, or by this assignee or his legal representative.

Every application for a patent should be for one invention only and should be made in the prescribed form and filed in the Patent Office (Head Office at Calcutta and Branch Offices at Chennai, Mumbai, and Delhi). If the application is made by virtue of an assignment, then the proof of the right to make an application should be furnished. It must be stated in the application that, the applicant is in possession of the invention and the name of the owner claiming to be the true and first inventor must also be stated.

Every application must be accompanied by a provisional or a complete specification. A provisional specification is a document in a prescribed form containing a description of the essential features of the invention. A complete specification is a document drawn in a prescribed form and contains the following:

• A full description of the invention and its operation or use and the method of performance.
• Disclosure of the best method of performing the invention known to the applicant and for which he is entitled to claim protection.
• A statement of claim or claims defining the scope of the invention for which protection is sought.

Every specification, whether provisional or complete shall describe the invention and begin with a title sufficiently indicating the subject matter to which the invention relates. Where an application is accompanied by a provisional specification, a complete specification must be filed within 12 months from the date of filing of the application.

On receiving the application for a patent along with complete specification, the Controller shall refer it to an examiner for making a report to him in respect of:

1. Whether the application and specification are in accordance with the requirements of this Act and of any rules made thereunder.
2. Whether there is any lawful ground of objection to the grant of a patent under the Act in pursuance of the application.
3. The result of the investigation made by him regarding anticipation of the invention by virtue of a previous publication or prior claim.
4. Any other matter which may be prescribed.

The examiner to whom the application and specification relating thereto have been referred should ordinarily make the report to the Controller within a period of 18 months from the date of such reference. If the report is adverse to the applicant or requires any amendment of the application, the Controller shall communicate the gist of the objections to the applicant and give him an opportunity of being heard. The Controller is also empowered to refuse to proceed with the application or require the application, specification, or drawings to be amended to his satisfaction.

On the acceptance of the complete specification, the Controller shall notify the applicant and advertise in the Official Gazette the fact that the specification has been accepted, and thereupon the application and specification with the drawings if any shall be open to the public inspection.

On and from the date of advertisement of the acceptance of a complete specification till the date of sealing of a patent, the applicant shall have the like privileges and rights as if the patent for the invention had been sealed on the date of advertisement of acceptance of the complete specification. However, the applicant shall not be entitled to institute any proceedings for infringement until the patent has been sealed.

Different IPR Approaches

Trade Mark:

Trade Marks Act, 1940 was the first statute law on trademarks in India, which was replaced by the Trade and Merchandise Marks Act, 1958. Certain minor amendments were carried out by the repealing and amending Act, of 1960 and the Patents Act, of 1970. The current law of trademarks contained in the Trade Marks Act, 1999 is in harmony with two major international treaties on the subject, namely

1. Paris Convention for protection of Industrial Property and
2. TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement.

A Trademark is a mark capable of being represented graphically and which is capable of distinguishing the goods and services of one person from those of others goods or services of one person from those of others as defined by the TMA 1999. It includes shapes of goods, their packaging, and a combination of colors. “Marks” means any device, brand, heading, label, ticket, name, signature, words, letter, numerals, the shape of goods, their packaging, or any combination thereof.

Functions of Trade Marks:

• It distinguishes the product from similar ones in the marketplace. If a mark cannot be relied upon to differentiate, it cannot fulfill any other role.
• Eliminates confusion and reduces product search costs.
• It identifies the product. Products are recognized on the basis of TMs.
• It indicates the source and origin of the producer-primary function and establishes a connection between goods and people.
• It advertises the product–investment function not merely as the symbol of goodwill but often the most effective agent for the creation of goodwill. Mark actually sells goods.
• It guarantees and assures a certain quality. TM is the standard of quality-customer expects that goods bearing the same mark will be of the same quality.

Different Types of Trademarks:

1. A name (including personal or surname of the applicant or predecessor in business or the signature of the person).
2. Alphanumeric or Letters or numerals or any combination thereof.
3. Image, symbol, monograms, letters, etc.
4. Sound marks in audio format.

Designs and Designs Act of 2000:

Considerable progress has been made in the field of science and technology after the enactment of the Designs Act, 1919 by the British Government in India. The Designs Act, 2000 is meant to consolidate and amend the law related to the protection of designs and resembles the Designs Act 1911. This act was in force since 11th May 2001 and extends to the whole of India.

“Design” means only the features of shape, configuration, pattern, ornament, or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical 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 any trademark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.

An industrial design refers to the ornamental or aesthetic aspects of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, and two-dimensional features such as patterns, lines, or colors.

Industrial designs are applied to a wide variety of industrial products and handicrafts; from technical and medical instruments to watches, jewelry, and other luxury items; from housewares and electrical appliances to vehicles and architectural structures from textile design to leisure goods.

Copyright

Copyright is a legal concept, enacted by most governments. A copyright is a law that gives the owner of a written document, musical composition, book, picture, or other creative work, the right to decide what other people can do with it. Copyright laws make it easier for authors to make money by selling their works. Because of copyright, a work can only be copied if the owner of the copyright gives permission.

According to Harrods Librarians Glossary, copyright is, “A procedure whereby the originator of a piece of intellectual property (book, article, piece of music, etc.) acquires a series of rights over the work created, including copying, publishing, performing, broadcasting and adaptation. According to Eric Miller, “Copyright refers to laws that regulate the use of the work of a creator, such as an artist or author. This includes copying, distributing, altering, and displaying creative, literary, and other types of work. Unless otherwise stated in a contract, the author or creator of a work retains the copyright.”

Indian Copyright Act:

Indian government passed the Copyright Act in the year 1957. Subsequently, this act was amended many times due to the influence of many international treaties for which India was a signatory.

Copyright has its origin in the 20th century. It is a form of Intellectual property, which deals with protecting the rights of a copyright holder.

Objectives:

1. To stop copyright misuse.
2. To help in protecting the rights of a person who holds the copyright.
3. To encourage the authors, music composers, and singers to create their original pieces of works by granting them exclusive rights.

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