Intellectual Property Rights

Intellectual Property Rights

2DefinitionIntellectual Property refers to creation of mind i.e. inventions, industrial designs for articles, literary & artistic work, symbols etc. used in commerce.

3Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of sourceCopyright, which includes literary and artistic works such as novels, poems, plays, films and musical works etc.

4TRIPSTheAgreementon Trade-Related Aspects of Intellectual Property Rights (TRIPS) An internationalagreementadministered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.

5TRIPSAccording to the TRIPS Agreement, the intellectual property has been classified into- Patents, Industrial Designs, Trade Marks, Copyright, Geographical Indications, Layout Designs of Integrated Circuits, Protection of Undisclosed Information/Trade Secrets. Different IP Rights vary in the protection they provide.6PATENTSA Patent is an intellectual property right relating to inventions and is the grant of exclusive right, for limited period, provided by the Government to the patentee, in exchange of full disclosure of his invention, for excluding others, from making, using, selling, importing the patented product or process producing that product for those purposes.

Why patent?The purpose of this system is to encourage inventions by promoting their protection and utilization so as to contribute to the development of industries, which in turn, contributes to the promotion of technological innovation and to the transfer and dissemination of technology.

7Patent right is territorial in nature and a patent obtained in one country is not enforceable in other country. The inventors/their assignees are required to file separate patent applications in different countries for obtaining the patent in those countries.

8Legislation in IndiaThe Patent System in India is governed by the Patents Act, 1970 (No. 39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003, as amended by the Patents (Amendment) Rules 2006 effective from 05-05-2006. 9AdministrationThe Patent Office, under the Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, performs the statutory duties in connection with the grant of patents for new inventions and registration of industrial designs. Patent Offices are located at Kolkata , Mumbai, Chennai and Delhi to deal with the applications for patents originating within their respective territorial jurisdictions. Intellectual Property Training Institute (IPTI) located at Nagpur provides training to the officials of IP offices and other users of the system who are working in the field of Intellectual Property Rights.

10International TreatiesIndia is a member-state of World Intellectual Property Organisation (WIPO), an International Organisation, responsible for the promotion of the protection of intellectual property throughout the world. India is a member of the following International Organisations and Treaties in respect of Patents: a) World Trade Organization (WTO) with effect from 01-01 -1995. b) Convention establishing World Intellectual Property Organisation, (WIPO). c) Paris Convention for the protection of Industrial Property with effect from Dec.7, 1998. d) Patent Co-operation Treaty (PCT) with effect from Dec.7, 1998. e) Budapest Treaty with effect from 17th December, 2001.

11Who may applyThe inventor may make an application, either alone or jointly with another, or his/their assignee or legal representative of any deceased inventor or his assignee.

12Precautions for applicantsThe first to file system is employed, in which, among persons having filed the same invention, first one is granted a patent, therefore, a patent application should be filed promptly after conceiving the invention. It is common experience that through ignorance of patent law, inventors act unknowingly and jeopardize the chance of obtaining patents for their inventions.

13Precautions for applicantsThe most common of these indiscretions is to publish their inventions in newspapers or scientific and technical journals, before applying for patents. Publication of an invention, even by the inventor himself, would (except under certain rare circumstances) constitute a bar for the subsequent patenting of it.

14Precautions for applicantsSimilarly, the use of the invention in public, or the commercial use of the invention , prior to the date of filing patent application would be a fatal objection to the grant of a patent for such invention. There is, however, no objection to the secret working of the invention by way of reasonable trial or experiment, or to the disclosure of the invention to others, confidentially.

15Precautions for applicantsWaiting until their inventions are fully developed for commercial working, before applying for patents is a mistake. It is, therefore, advisable to apply for a patent as soon as the inventor's idea of the nature of the invention has taken a definite shape.

16Precautions for applicantsIt is permissible to file an application for a patent accompanied by a "Provisional Specification" describing the invention. The application may, therefore, be made even before the full details of working of the invention are developed. The filing of an application for a patent disclosing the invention would secure priority date of the invention, and thereby, enable the inventor to work out the practical details of the invention and to file complete specification within 12 months from the date of filing of provisional specification.

17What is not patentableThe following are Non-Patentable inventions within the meaning of the Act: - an invention which 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 could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;

18What is not patentablethe mere discovery of a scientific principle or the formulation of an abstract theory (or discovery of any living thing or non-living substances occurring in nature); 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 mere 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

191920What is not patentablethe mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; a method of agriculture or horticulture 21What is not patentableany 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 to increase their economic value or that of their products. plants and animals in whole or any part thereof other than micro-organisms 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 programme per se or algorithms 22What is not patentableliterary, 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 mental act or method of playing game; a presentation of information; topography of integrated circuits;

23What is not patentableAn invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components. Inventions relating to atomic energy and the inventions prejudicial to the interest of security of India.What is patentableThe invention to be patentable should be technical in nature and should meet the following criteria :NoveltyInventive stepIndustrial applicability24Term of patentTerm of every patent will be 20 years from the date of filing of patent application, irrespective of whether it is filed with provisional or complete specification. Date of patent is the date on which the application for patent is filed.25Post grant oppositionAny interested person can file notice of opposition (along with written statement and evidence, if any) anytime after the grant of Patent but before the expiry of a period of one year from the date of publication of grant of a Patent in the Patent Office Journal26Rights of patenteePrevent others from performing, without authorisation, the act of making, using, offering for sale, selling or importing that product for the above purpose. Where a patent covers a process, the patentee has the exclusive right to exclude others from performing, without his authorisation, the act of using that process, using and offering for sale, selling or importing for those purposes, the product obtained directly by that process in India. 2/2/201527Procedure for the Grant of PatentAfter filing Patent Application in India, a Request for Examination is filed with the Patent OfficeThereafter the application is examined by patent office and objections, if any, are raised thereto.After removal of all the objections, the Patent is granted and is advertised for Opposition Purposes.The Patent is Open for third party opposition(s), if any, for a period of ONE YEAR from the date of advertisement.

28To keep the patent in force, Renewal fee is to be paid every year.29Specifications should includeTitle of invention, Field of invention, Background of invention with regard to the drawback associated with known art,Object of invention, Statement of invention, A summary of invention,A brief description of the accompanying drawing, Detailed description of the invention with reference to drawing/examples, Claim(s), Abstract.

30Some Issues-product Vs Process PatentFrom 1972 to 2003, India only allowed process patents, which meant that even a patented product could be produced by someone other than the patent-holder if they could find a different method to manufacturing it. However, in 2005 the law was amended retrospectively to allow for product patents so that India could be compliant with the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

31But even before the law was amended, India agreed to invite applications for product patents under theTRIPSagreement. These "mailbox" applications were opened in 2005 when the law was finally enacted. Novartisfiled an application for patent for Glivec, the bloodcancerdrug, under the mailbox provision.

32Some issues- patenting of NeemIn 1995, US MNC W R Grace and United States Department of Agriculture was granted patent by EPO for neem-based bio-pesticides, including Neemix, for use on food crops. Neemix suppresses insect feeding behaviour and growth in over 200 species of insects.

India claimed that fungicidal qualities of the neem tree -- a traditional plant known for its medicinal properties -- and its use has been known in India for over 2,000 years.India finally won the decade-long battle in 2000In the United States 'prior existing knowledge' is only recognised if it is published in a journal -- not if it has been passed down through generations via oral and folk traditions.3334

35TRADE /SERVICE MARKA Trade/ Service mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.

Trademark RENEWAL :The Trade Mark once registered has to be renewed after every 10 years.

TERM OF TRADE MARK :UNLIMITED - as long as it is renewed as per law.36COPYRIGHTCopyright means the exclusive right to do & authorise to do certain acts in relation to artistic, literary, dramatic, musical works, cinematographic film, sound recording and software

The Copyright vests in original work in whatever form it may be, i. e. , literary, artistic, etc. The registration of Copyright in India is not mandatory but useful in courts where civil and / or criminal proceeding can be taken to protect it.

37Geographical IndicationsA products quality, reputation or other characteristics can be determined by where it comes from. Geographical indications are place names (in some countries also words associated with a place) used to identify products that come from these places and have these characteristics (for example, Champagne, Tequila)3839Why was Novartis denied a patent for Glivec in India?

The key issue revolved around whether Glivec was a "new product" under the terms of the law. In January 2006, the Indian patent office ruled that the drug was not substantially different from one for which patents had already been given in the US andEurope. Thus, it did not pass the novelty test. While moving to the new patent regime, Indian lawmakers had inserted a provision section 3(d)in thePatents Act to check against 'evergreening'.This is the term used to describe a practice under which firms slightly tweak an existing process or product to seek a fresh patent once the original protection expires. This helps them retain monopoly rights for a longer period. The patent office's ruling was upheld by theIntellectual Property Appellate Board(IPAB) and later by theSupreme Court.

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