Intellectual Property Rights: An Introduction


By

Ruchi Bhatia
Lecturer
Department of Management Studies
B.S. Anangpuria Institute of Technology & Management
Faridabad
 


Intellectual property refers to creations of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce. Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.

Intellectual property plays an important role in an increasingly broad range of areas, ranging from the Internet to health care to nearly all aspects of science and technology and literature and the arts. Understanding the role of intellectual property in these areas (many of them still emerging) often requires significant new research and study. Intellectual property surrounds us in nearly everything we do, at home, at school, at work, at rest and at play. No matter what we do, the fruits of human creativity and invention surrounds us.

PATENT

A patent gives an inventor the right for a limited period to stop others from making, using or selling an invention without the permission of the inventor. It is a deal between an inventor and the Government in which the inventor is allowed a fixed period of monopoly in return for allowing the invention to be made public. Patents are about functional and technical aspects of products and processes. A patented invention is recorded in a patent document. A patent document must have Description of the invention, possibly with drawings, with enough for detail a person skilled in the area of technology to perform the invention.

RENEWAL The patent is renewed every year from the date of patent.

TERM OF PATENT 20 years from the date of filing of application.

THE FOLLOWING INVENTIONS ARE NOT PATENTABLE: -

1. Frivolous or obvious inventions.

2. Inventions which could be contrary to law or mortality or injurious to human, animal or plant life and health or to the environment.

3. Mere discovery of the scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature.

4. Mere discovery of any new property or mere new use for known substance/ known process/ machine/ apparatus - unless results to new products or employs one new reactant.

5. Producing a new substance by mere admixtures of substances.

6. Mere arrangement/ rearrangement or duplication of known devices functioning independently.

7. Method of agriculture and horticulture.

8. Any process for the medicinal or the surgical, curative prophylactic, diagnostic, therapeutic or other treatment of human beings, animals to render them free of disease or to increase their economic value or that of their products.

9. The biological processes for production or propagation of plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species.

10. A mathematical or business method or algorithms

11. A computer programme other than its technical application to industry or a combination with hardware.

12. Aesthetic creation including cinematography and television production.

13. Method for performing mental act or playing game.

14. Presentation of information.

15. Topography of integrated circuits.

16. Invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known components.

17. Inventions relating to atomic energy.

WHO CAN APPLY FOR THE PATENT?

1) Any person claiming to be the true and first inventor of the invention.

2) 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) The legal representative of any deceased person who immediately before his death was entitled to make such an application.

4) The persons referred to therein either alone or jointly with any other person.

PROCEDURE FOR REGISTRATION OF PATENT (Figure1)


TRADEMARK

A trademark or trade mark is a distinctive sign of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of industrial property, and typically comprises a name, word, phrase, logo, symbol, design, image, or a combination of these elements. The trademark once registered has to be renewed after every 10 years.

PROCEDURE FOR REGISTRATION: Same as shown in figure 1

CERTAIN MARKS ARE PROHIBITED FROM REGISTERATION: -

1) A mark- the use of which could be likely to deceive or cause confusion, or the use of which could be contrary to any law for the time being in force, or which comprises or contains any scandalous or obscene matter, or which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India, or which could otherwise be disentitled to protection in a court shall not be registered as a trademark.

2) No trade mark will be registered in respect of any goods or description of goods which is identical to a trade mark already registered in the name of a different proprietor in respect of same goods or description of same goods.

3) No word which is commonly used and accepted name of a single chemical element or single chemical compound (as distinguished from a mixture) shall be registered as trademark in respect of chemical substance or preparation

COPYRIGHT

The main purpose of a copyright is to protect expression of thoughts and ideas. Copyright protects 'original literary, dramatic, musical and artistic works'. In order to secure copyright protection the author must have bestowed upon the work "sufficient judgement, skill, labour or capital". Copyright is a right given to or derived from the works and it is not a right in the ideas. There is no copyright in ideas. Copyright subsists only the material form to which the ideas are translated. Renewal of copyright is not required.

DESIGN

The main aim of Design Act 2000 is to protect designs which serve the purpose of visual appeal. A design to be registered must be some shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether two dimensional or three dimensional or in both forms, by any industrial process or means, 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 trade mark or property mark or any artistic work. Design must be capable of being applied to an article in such a way that the article to which it is applied will appeal to, and judged solely by the eye.

A design cannot be registered if it:-

1) is not new or original, or

2) has 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, or

3) is not significantly distinguishable from known designs or combinations of known designs, or

4) comprises or contains scandalous or obscene matter.

PROCEDURE FOR REGISTRATION: - Same as shown in figure 1

IMPACT OF MODERNISATION: -

Patents: The filing of patent applications has increased from 4824 in the year 1999-2000 to 28,882 applications in the year 2006-2007. The number of applications examined has gone up to 14,119 in 2006-07 against the figure of 2824 in the year 1999-2000.

Statistics:

 

1999-2000

2000-01

2001-02

2002-03

2003-04

2004-05

2005-06

2006-07

Applications filed

4824

8503

10,592

11,466

12,613

17,466

24,415

28,882

Applications Examined

2824

4264

5104

9538

10,709

14,813

11,569

14,119

Patents Granted

1881

1318

1591

1379

2469

1911

4320

7359


Trademarks: The backlog of unexamined applications of approximately 5 lakh cases brought down to zero. Renewal of Trademarks certificates being done instantaneously in clear cases and new applications are examined within one week. As against only 8,010 registrations in 1999-2000, 13 times more Trademarks were registered in 2006-07, that is, 109,361. 3.38 lakh trademark certificates were issued during the last 3 years whereas only 1.65 lakh marks were registered in 64 years (since 1940 to 2004).

Statistics:

 

1999-2000

2000-01

2001-02

2002-03

2003-04

2004-05

2005-06

2006-07

Filed

66,378

84,275

90,236

94,120

92,251

78,996

85,699

1,03,419

Examined

42,500

70,115

1,59,735

2,49,003

89,958

72,091

79,200

85,185

Registered

8010

14,202

6204

11,190

39,762

45,015

1,84,325

1,09,361


Geographical Indications: 39 Geographical Indications products have been registered since September, 2003.  These include Darjeeling Tea, Chanderi Saree, Pochanpally Ikat, Solapur Chaddar, Mysore Silk, Kullu Shawl, Bidriware, etc.

Designs: The filing of applications for Design has increased from 2874 in 1999-2000 to 5372 in 2006-07. The number of applications examined has also gone up to 5179 in 2006-07 against the figure of 2067 in 1999-2000. The number of Designs registered has also increased from 1382 in 1999-2000 to 4431 in 2006-07.

Intellectual property rights in India

There is a well-established statutory, administrative and judicial framework to safeguard intellectual property rights in India, whether they relate to patents, trademarks, copyright or industrial designs. Well-known international trademarks have been protected in India even when they were not registered in India.  The Indian Trademarks Law has been extended through court decisions to service marks in addition to trade marks for goods.  Computer software companies have successfully curtailed piracy through court orders.  Computer databases have been protected.  The courts, under the doctrine of breach of confidentiality, accorded an extensive protection of trade secrets.  Right to privacy, which is not protected even in some developed countries, has been recognized in India.

Protection of intellectual property rights in India continues to be strengthened further. The year 1999 witnessed the consideration and passage of major legislation with regard to protection of intellectual property rights in harmony with international practices and in compliance with India's obligations under TRIPS. These include:

    1.   The Patents (Amendment) Act, 1999 passed by the Indian Parliament on March 10, 1999 to amend the Patents Act of 1970 that provides for establishment of a mail box system to file patents and accords exclusive marketing rights for 5 years.

    2.   The Trade Marks Bill, 1999 which repeals and replaces the Trade and Merchandise Marks Act, 1958 passed by the Indian Parliament in the Winter Session that concluded on December 23, 1999.

    3.   The Copyright (Amendment) Act, 1999 passed by both houses of the Indian Parliament, and signed by the President of India on December 30, 1999.

    4.   A sui generis legislation for the protection of geographical indications called the Geographical Indications of Goods (Registration & Protection) Bill, 1999 approved by both houses of the Indian Parliament on December 23, 1999.

    5.   The Industrial Designs Bill, 1999 which replaces the Designs Act, 1911 was passed in the Upper House of the Indian Parliament in the Winter Session which concluded on December 23, 1999 and is presently before the Lower House for its consideration.

    6.   The Patents (Second Amendment) Bill, 1999 to further amend the Patents Act, 1970 and make it TRIPS compliant was introduced in the Upper House of Indian Parliament on December 20, 1999.

In addition to the above legislative changes, the Government of India has taken several measures to streamline and strengthen the intellectual property administration system in the country. Projects relating to the modernization of patent information services and trademarks registry have been implemented with help from WIPO/UNDP. The Government of India is implementing a project for modernization of patent offices at a cost of Rs.756 million incorporating several components such as human resource development, recruiting additional examiners, infrastructure support and strengthening by way of computerization and re-engineering work practices, and elimination of backlog of patent applications. An amendment to the Patent Rules was notified on June 2, 1999 to simplify the procedural aspects.

The Trade Marks Registry is also proposed to be further strengthened and modernized. A project for modernization was earlier implemented during 1993-96. Further strengthening of the Registry is being taken up at a cost of Rs.86 million. The main thrust now is to strengthen the infrastructure of the Trade Marks Registry and the early removal of backlog of pending applications, transfer of records to CD-ROM's, re-engineering of work processes, appointment of additional examiners, etc.

As regards the aspect enforcement, Indian enforcement agencies are now working very effectively and there has been a notable decline in the levels of piracy in India.  In addition to intensifying raids against copyright infringers, the Government has taken a number of measures to strengthen the enforcement of copyright law. Special cells for copyright enforcement have been set up in 23 States and Union Territories. In addition, for collective administration of copyright, copyright societies have been set up for different classes of works.

References:-

1. http://www.iprventure.com
2. http://www.iprindia.org
3. http://vic-ikp.info
4. http://dipp.nic.in
5. http://www.indianembassy.org
 


Ruchi Bhatia
Lecturer
Department of Management Studies
B.S. Anangpuria Institute of Technology & Management
Faridabad
 

Source: E-mail January 21, 2008

          

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