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Intellectual Property Rights Implications on Agriculture & Food Enterprises

Prof. V. SwapnaAssociate Faculty MemberIndian Patent Agentswapnaipfc@nimsme.org

Intellectual property Rights

IP refers to creations of the human mind.

It gives the creator an exclusive right over the use of his/her creation for a certain period of time to inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.

IP is used as

Defensive strategy: Protecting yourself from others using your assets for their benefit without giving you a recognition

Offensive strategy: Selling the IP and retaining the morals, licensing of IP for use by others but retaining the ownership

History

GATT : General Agreement on Tariffs and Trade.

Objective:

Reduction of barriers to international trade.

(This was achieved through the reduction of tariff barriers, quantitative restrictions and subsidies on trade through a series of agreements.)

Functions of the GATT were taken over by the World Trade Organization (WTO)which was established during the final round of negotiations in the early 1990s

WIPO

WIPO is an intergovernmental organization, which administers a number of international treaties in the field of intellectual property.

Mission: To promote innovation and creativity for the economic, social and cultural development of all countries, through a balanced and effective international intellectual property system.

Member states: 185

Role: Establish and harmonize rules and practices for the protection of intellectual property rights Provides global registration systems for trademarks, industrial designs and appellations of origin, and a global filing system for patents.

Trade Related Aspects of Intellectual Property Rights (TRIPS)

International Agreement administered by the World Trade Organization (WTO).

Sets down minimum standards for many forms of intellectual Property (IP) regulation.

Seven Forms of IP:PatentsPlant Variety protection or Plant Breeders RightsCopyrightsGeographical IndicationsTrademarksLayout designs for integrated circuitsTrade secrets

PatentsA patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem

The limited monopoly right granted by the state enables an inventor to prohibit another person from manufacturing, using or selling the patented product or from using the patented process, without permission

Period of Patents - 20 Years

Examples: Process related to agrochemicals, growth promoters and regulators, vaccines, drugs, hides and wool, dairy technology, food technology, fuel and biogas production, bioreactors etc

What can be Patented?

Inventions in all fields of technology, whether products or processes, if they meet the criteria of

Novelty : Not known to public prior to claim by inventor Non-obviousness (inventive step): Should not be obvious to a person with ordinary skill in the art Industrial application (utility).Patents

Non Patentable InventionsFrivolous inventionsAn 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 environmentThe 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 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 substancePatents

Non Patentable Inventions (contd)The mere arrangement or re-arrangement or duplication of known devices eachfunctioning independently of one another in a known wayA method of agriculture or horticulture.Any process for the medicinal, surgical, curative, prophylactic diagnostic therapeutic or other treatment of human being 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. Plant or animal varieties, or essentially biological processes for the production of such, other than microbiological processA mere scheme or rule or method of performing mental act or method of playing game;A presentation of informationTopography of integrated circuitsPatents

Patent filing procedure in India

Plant Variety protection or Plant Breeders Rights

Rights granted to the breeder of a new variety of plant.

These laws typically grant the plant breeder control of the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years.

International Rights

International Convention for the Protection of New Varieties of Plants (UPOV Convention).

Purpose of the Convention was to ensure that the member states party to the Convention acknowledge the achievements of breeders of new plant varieties by making available to them an exclusive property right, on the basis of a set of uniform and clearly defined principles.

The main objectives of the PVP Act are

To recognize and protect the rights of farmers for their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties.

To encourage the development of new varieties of plants for accelerated agricultural development.

To accelerate the agricultural development in the country and protect Plant Breeders Rights (PBR) and to stimulate investment in research and development (R&D) both in public and private sector, for breeding new plant varieties.

To facilitate the growth of the seed industry, which will ensure the availability of good quality seed and plant material to the farmers.

Registration of all the plant varieties

It is Mandatory.

Time period.( 15-18 years).

Type of varieties that can be registered

New Varieties Farmers Varieties Extant Varieties

Persons eligible for Registration of plant varietiesBreeders, farmers, universities, agricultural institutes

Rights of BreedersProductionSaleMarketingDistributionExportImport

Farmers Rights To save, use, sow, re-sow, exchange, share or sell his farm produce including seed in the same manner as he was entitled earlier (Seeds for sale should not be branded)

To full disclosure of the expected performance of the Seeds or planting material by the plant breeder.

Researchers Rights

Free and complete access to protected materials for research use in developing new varieties of plants.

Geographical Indications

The marks associated with products originating from country, region or locality where the quality, reputation or other characteristics of the product are essentially attributable to its geographical origin.Most of the GIs derived relate to agriculture products.

Plant Varieties developed with traditional knowledge and associated with particular region can be protected as GI

ExamplesCaf de Colombia

Caf de Colombia was recognized as an appellation of origin in Colombia. First non-European Protected Geographical Indication (PGI) registered in the European Union (EU). Two new appellations of origin for coffee from specific regions of Colombia were recognized, namely Caf de Nario and Caf del CaucaCaf de Colombia enjoys a worldwide reputation and has become one of Colombias most valuable brands

Giant white maize

(APROMAIZ) the association of giant giant white maize producers of Cusco City, in the Urubamba Valley of the Andes Mountains, Peru

Because of the specific geo-climatic quality of the area, Cusco's giant white maize has developed a flavor, texture and stature that is distinctive

Cajamarcas official cheese-makers association A group of 39 small and medium-scale enterprises (SME)

Cajamarca cheese

Geographical indications as a means to preserve traditional knowledge (TK) and traditional cultural expressions (TCEs)

THAI SILK

Thai silk, produced on the Korat Plateau in Thailands northeast region, is synonymous with refinement, elegance and hundreds of years of tradition.

Sui generis systems of protection

In certain jurisdictions, GIs may be protected through a system that applies specifically and exclusively to them a sui generis system of protection.

A sui generis protection system exists in the EU with regard to GIs for wines and spirits, agricultural products and foodstuffs.

India, Switzerland, the Andean Community countries and the African Intellectual Property Organization (OAPI), among others, also have sui generis systems of protection

ARGAN OIL for an oil from the kernels of the argan tree, grown in Morocco

GRUYRE for a cheese from a specific region in SwitzerlandExamples of GI A Sui Generis Right

RooibosRooibos is one of more than two hundred species of aspalathus that only grow in South Africa, but it is the only one with recognized health benefits

Farmers in the region use their traditional knowledge to process Rooibos into tea

Prohibitions to registration of certain GI in India

the use of which would be likely to deceive or cause confusion; orthe use of which would be contrary to any law for the time being in force; or which comprises or contains 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; orwhich would otherwise be disentitled to protection in a court; orwhich are determined to generic names or indications of goods and are, therefore, not or ceases to be protected in their country of origin, or which have fallen in to disuse in that country; orwhich, although literally true as to the territory, region or locality in which the goods originate, but falsely represent to the persons that the goods originate in another territory, region or locality, as the case may be.

Registry

GI Registry at Chennai having all India jurisdiction

Registry maintains a Register of GI which is divided in to two parts

Part A: Details of distinguishing characteristics of the goods and of the registered proprietor which would be an association of persons or producers or a body representing interest of such producers like for instance the Tea Board, Coffee Board, Spices Board etc. To include all producers a collective reference may be made in the application.

Part B: contains particulars of authorised users of GI such as those producers (traders and dealers) who have not been included in the original application for registration. (this provision included due to socio economic factors)

GI Registration process in India

Registration is valid for ten years but can be renewed from time to time on payment of renewal fee. Similar procedure followed for registration as an authorised user.

Registered GIs in India- Sector WiseExamples:

Agricultural: Basmati Rice; Coorg Orange; Mysore Betal Leaf;Nanjanagud Bananaetc

Foodstuff:Tirupathi Laddu; Hyderabadi Biryani;Ganjam Goat Ghee;Hyderabad Haleem..et

Hyderabad Haleem

Food Specially prepared delicacy using meat, wheat and ghee during the holy month of Ramzan

Haleem Makers' Association of Hyderabad (HMAH) filed for the GI tag.

Haleem makers outside Hyderabad will not be able to sell their product as Hyderabadi Haleem and the ones that are made within the city, will be subjected to strict quality standards.

Hyderabad Biryani

It is likely to get a Geographical Indication (GI) status soon

Case study

Trademark

A trade mark is one or more words, designs or symbols that are used to distinguish goods and services of one person or firm from those of others in the marketplace.

It is identified by the symbols and .

Examples : Coco Cola, Nike, IBM and McDonalds

Period of registration : 10 years (Renewable indefinitely)

Kinds of Trademarks:

Marks on goods Service Marks Certification trademark Collective Marks Well known marks Trade Names (Brand name)

TM, SM -when to usemay be used for unregistered marks.Has no legal effect

SM may be used for unregistered service marks in place of TM, but there is not really a legal distinction

relates to copyright, not trademark rights.

Trademark

Forms of TradeMark

VisualAudioOlfactory

Whats not Protected under Trademark?

State Emblems, Official Hallmarks, Emblems of Intergovernmental Organizations

Trade marks- RegistrationProcedure

Market search File application in the Trademark Registry of particular region Examination of application by registry Advertisement in the Trade mark journal Opposition if any Grant

Period of registration : 10 years (Renewable indefinitely)

The Value of a TrademarkInterbrand conducts an annual survey of the most valuable trademarks in the world:

Coca-cola: US$ 79,213 millon Microsoft : 59,546 Million. IBM: 78,808 Million.

Case Study on TrademarksAn Italian businessman buys unmarked t-shirts from manufacturers of generic clothing, attaches his trademark (Pickwick, which pictures a rebellious-looking teenager) and begins to sell them to retail storesStarted in a garage in the periphery of RomeToday the Pickwick trademark is perceived by Italian teenagers as a synonym of style and qualityPickwick has began to export its products across EuropeIts trademark is its most valuable asset

Layout Designs of Integrated circuits

A layout-design (topography) is defined as the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit

Registration is valid for 10 years

The exclusive rights include the right of reproduction and the right of importation, sale and other distribution for commercial purposes

Non-registrable Layout-Designs

Not original Has been commercially exploited anywhere in India or in a convention country Not inherently distinctive Not inherently capable of being distinguishable from any other registered layout-design

Copyrights

Original Literary, Dramatic, Musical and Artistic WorksWork: Ideas expressed in material formNo copyright in ideas or facts Cinematograph Films Sound Recordings

Two Kinds of RightsMoral Rights To protect personality of authorEconomic Rights To bring economic benefits

Protection Period : life of the author plus 50 yearsExamples: Registered for databases, bioinformatics, genes and gene sequences, amino acid sequences, antibodies, etc

Copyright : A Vital Tool for Artists

Through traditional and digital mediums, Mr. MacNeil has developed an impressive portfolio

Mr. MacNeil works in a variety of styles, which he seamlessly blends together(Photos: Bob MacNeil) Mr. MacNeil feels that copyright is an essential tool to an artists survival as it protects his creations and career.

Refers to the products overall form and function.

Ornamental & Aesthetic aspects of the product

It consists of shape, ornamentation, patterns, lines or color of the product or combinations

Owner of registered design has the exclusive right to prevent its unauthorized copying or imitation by others .

Period of protection is 10 years extendable by 5 years.

Criteria for registering Industrial design:

New or original Not disclosed to the public anywherein the world prior to the filing Significantly distinguishable Does not contain scandalous or obscene matter Not contrary to public order or moralityIndustrial DesignsExamples: Agriculture Machinery

ExamplesMyanmar traditional knowledge and medicine is believed to be able to cure all of these diseases by using ingredients such as fresh or dried roots, stems, leaves, buds, and flowers

FAME Pharmaceutical Company (Fame), a privately owned Yangoon based manufacturer and marketer of traditional herbal medicines

Fame Pluvimin multivitamin Registered Trademark

Registered all package designs with the Myanmar Office of Trademark Registration (MOTR).

Traditional medicine - Myanmar

Ingelec -Electrical and electronics industry in Morocco

The Ingelec logo, internationally protected under the Madrid system

Ingelec's single switch and socket design Ingelec's double switch and socket design

Intellectual property protection of traditional knowledge The Convention on Biological Diversity (CBD)

First international environmental convection to develop measures for the use and protection of traditional knowledge, related to the conservation and sustainable use of biodiversity.

Significant provisions include

Countries have sovereign rights over their biological resources within their legal boundariesUse of biological diversity should not endanger the environment or the biodiversityPiracy of biological diversity & traditional knowledge of another country is immoral and illegal actSustainable use of biological resourcesEach country has a right to enact laws to establish the sovereignity over its biodiversity

India- Biological Diversity Act 2002 Conservation and sustainable use of Indian biodiversity and traditional Knowledge

To ensure equitable sharing of benefits arising out of commercialization of biological and knowledge resources

All Indians have a right to use biodiversity for research purpose within the country

For commercialization it needs the approval of State Bio Diversity Board (SBB)

Non citizens of India or institutions not wholly incorporated in India or incorporated in India with any non-indian participation in share capital or management do not have the right to access or use of Indian biodiversity with our prior approval from NBA (National biodiversity authority)

Trade secret

Some inventions, data, information cannot be protected by any of the available means of IPRs. Such information is held confidential as a trade secret.

Technical matters, such as the composition or design of a product, a method of manufacture or the know-hownecessary to perform a particular operation.

Trade secret can be Invention, Idea, survey method, manufacturing process, experiment results, chemical formula, recipe, financial strategy, client databaseetc

When Trade Secrets are preferred?When Invention is not a patentable subject matterPatent protection is limited to 20 years, when secret can be kept beyond that periodWhen it is difficult to reverse engineerExamples: Hybrid plant varieties; Coco cola formula; Pan parag; Perfumes; Flavor recipes

Categorisation Matrix of Technologies

One product many IPRInvention of CD playerprotected by patentBrand on CD playerprotected by trademark Design of CD player protected by industrial designMusic played on CD playerprotected by copyright

The inventor licensed the system to Coca-Cola at 1/10 of a penny per can. During the period of validity of the patent the inventor obtained 148,000 UK pounds a day on royalties

Importance of IP for SMEs

IP can enable a small enterprises to:

Reap profits fromits ideas and creations and from licensingits rights Preserve a market niche and thereby compete effectively with larger companies Establish and grow its reputation and goodwill in the marketplace Enhance the worth of a small business in the eyes of investors and financing institutions Raise the value of a small business in the event of a sale or merger

Statergic Options for developing Enterprises Raise awareness on the role of IPR. Setting up the IP & Managing it Use of IP as Offensive or Defensive tool Licensing strategy options Joint Developments

Thanks