IPR-Intellectual Property Rights

IPR-Intellectual Property Rights

 
Introduction
Intellectual property (IP) is a legal field that refers to creations of the mind such as musical, literary, and artistic works; inventions; and symbols, names, images, and designs used in commerce, including copyrights, trademarks, patents, and related rights. Under intellectual property law, the holder of one of these abstract “properties” has certain exclusive rights to the creative work, commercial symbol, or invention by which it is covered.
Intellectual property rights are a bundle of exclusive rights over creations of the mind, both artistic and commercial. The former is covered by copyright laws, which protect creative works such as books, movies, music, paintings, photographs, and software and gives the copyright holder exclusive right to control reproduction or adaptation of such works for a certain period of time.
The second category is collectively known as “industrial properties”, as they are typically created and used for industrial or commercial purposes. A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder a right to prevent others from practising the invention without a license from the inventor for a certain period of time. A trademark is a distinctive sign which is used to prevent confusion among products in the marketplace.
An industrial design right protects the form of appearance, style or design of an industrial object from infringement. A trade secret is an item of non-public information concerning the commercial practices or proprietary knowledge of a business. Public disclosure of trade secrets may sometimes be illegal.
The term “intellectual property” denotes the specific legal rights described above, and not the intellectual work itself.
The importance of intellectual property in India is well established at all levels- statutory, administrative and judicial. India ratified the agreement establishing the World Trade Organization (WTO). This Agreement, inter-alia, contains an Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which came into force from 1^st January 1995. It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade. The obligations under the TRIPS Agreement relate to provision of minimum standard of protection within the member countries legal systems and practices.
The Agreement provides for norms and standards in respect of following areas of intellectual property:

• Copyrights and related rights
• Trade Marks
• Geographical Indications
• Industrial Designs
• Lay out Designs of Integrated Circuits
• Protection of Undisclosed Information (Trade Secrets)
• Patents
• Plant varieties

Essential Elements of Intellectual Property Rights
IPR is a broad term for covering –
1) Patents for inventions
2) Copyrights for material
3) Trademarks for broad identity and
4) Trade secrets
In general these properties are termed as “Intellectual Property”.  Intellectual Property is an asset that can be bought or sold, licensed and exchanged.  But of course unlike other properties, intellectual property is intangible; rather it cannot be identified by its specific parameters.  These properties are protected on a national basis.
 

1) PATENTS

• A patent  is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention. An invention is a solution to a specific technological problem and is a product or a process.
• A government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention.

This refers to innovations – new or improved product and processes which are meant for industrial applications.  This is a territorial right which requires registration for a limited time.  Patent is a contract between an inventor as an individual and the society as a whole.  The inventor has exclusive right to prevent anybody making use of and/or selling a patented invention.  Of course, this is only for a specific duration till the inventor discloses the details of invention to the public.
The legal authority in this patent right is the World Trade Organization (WTO) agreement with respect to Trade Related Aspects of Intellectual Property Right (TRIPS).  This offers the international standard for the required duration of 20 years from the date of filing the patent.  Once this period is over, people are free to make use of this invention as they like.  However, though the member has a right to prevent others making use of his patented invention, the owner has no right to make use or sell the invention itself.  Patents are granted under national laws and these rights are enforceable by civil laws rather than criminal proceedings.
Conditions to be satisfied by an invention to be Patentable:

1. Novelty
2. Inventiveness(Non-obviousness)
3. Usefulness

1. Novelty
A novel invention is one,which has not been disclosed,in prior art where prior art means everything that has been published,presented or otherwise disclosed to the public on the date of patent.
2. Inventiveness(Non-Obviousness)
A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in the art i.e skilled in the subject matter of the patent application.
3. Usefulness
An invention must posses utility for the grant of patent.No valid patent can be granted for an invention devoid of utility.
Patentable Inventions under the Patents Act,1970
a) Art,process,method or manner of manufacture.
b) Machine,apparatus or other article,Substances produced by manufacture,which include any new and useful improvements of any of them and an alleged invention.
c) Inventions claiming substance intended for use,or capable of being used,as food or as medicine or drug or relating to substances prepared or produced by chemical processes(including alloys,optical glass,semiconductors and inter-metallic compounds) are not patentable.
Types of Inventions which are not Patentable in India
An invention may satisfy the conditions of novelty,inventiveness and usefulness but it may not qualify for a patent under the following situations:
a) An invention which is frivolous or which claims anything obviously contrary to well established natural laws e.g. different of perpetual motion machines.
b) An invention the primary or intended use of which would be contrary to law or morality or injurious to public health e.g a process for the preparation of a beverage which involves use of a carcinogenic substance,although the beverage may have higher nourishment value.
c) The mere discovery of a scientific principle or formation of an abstract theory e.g Raman Effect.
d) The mere discovery of any new property or ne use of known substance or the mere use of known process,machine or apparatus unless such a known process results in a new product or employs at least one new reactant.
e) 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.
f) The mere arrangement of rearrangement or duplication of features of known devices each functioning independently of one another in a known way.
g) A method or process of testing applicable during the process of manufacture for rendering the machine,apparatus or other equipment more efficient.
h) A method of agriculture or horticulture.
i) Any process for medical,surgical,curative,prophylactic or other treatment of human beings,or any process fo a similar treatment of animals or plants.
j) Inventions relating to atomic energy.
Types of patents
i) Utility patents
ii) Design patents
iii) Plant patents
i) Utility patents
A utility patent may be available for inventions which are novel, useful, and non-obvious. Utility patents can be obtained for the utilitarian or functional aspects of an invention. Utility patents have a term of twenty years from the date of filling the patent application with the patent and trademark office, although term extensions are available in certain specific situations. During the term of a utility patent, maintenance fees must be paid in order to sustain the patent.
ii) Design patents
It can be granted to any one who invents a new, original ornamental design for an article of manufacture.  A design patent protects the ornamental design (i.e. appearance) of the article.  A design patent has duration of 14 years from the date of filing. Design patents are not subject to maintenance fee payments.
iii) Plant patents
Plant patent can be granted to any one who invents or discovers and reproduces a new variety of plant. A plant patent may be issued for the invention or discovery of a distinct and new variety of plants, which may be asexually reproduced. To qualify for this type of patent, the discovery or invention must be novel, distinct, and non-obvious. A plant patent has a term of 20 years from the date of filing.
Term of a Patent in the Indian System
a) Five years from the date of selling of the patent or seven years from the date of the patent (i.e the date of filing the complete specification) whichever period is shorter,for an invention claiming the method or process of manufacture of a substance,where the substance is intended or capable of being used as a drug,medicine or food.
b) Twenty years from the date of patent in respect of any other patentable invention.
Essential Patent documents to be submitted
There are two types of patent documents usually known as patent specification,namely

1. Provisional specification
2. Complete Specificaion

1. Provisional Specification
A provisional specification is usually filled to establish priority of the invention in case the disclosed invention is at a conceptual stage and a delay is expected in submitting full and specific description of the invention.Although,a patent application accompanied with provisional specification does not confer any legal patent rights to the applicants,it is however a very important document to establish the earliest ownership of an invention.Complete specification must be submitted within 12 months of filing the provisional specification.This period can be extended by 3 months.
2. Complete Specification
Submission of complete specification is necessary to obtain a patent.The contents of a complete specification would include the following:
Title of the invention

• Field to which invention belongs.
• Background of the invention including prior art giving drawbacks of the known inventions practices.
• Complete description of the invention along with experimental results.
• Drawings etc. essential for understanding the invention.
• Claims,which are statements,related to the invention on which legal proprietorship is being sought.Therefore the claims have to be drafted very carefully.

Criteria for Naming inventors in an Application for Patent
The name of inventors is normally decided on the basis of the following criteria:

1. All persons who contribute towards development of patentable features of an invention should be named as inventors.
2. All persons,who have made intellectual contribution in achieving the final results of the research work leading to a patent,should be named as inventor(s)
3. A person who has not contributed intellectually in the development of an invention is not entitled to be included as an inventor.

A person who provided ideas needed to produce the ‘germs of the invention’ need not himself/herself carry out the experiments,construct the apparatus with his/her own hands or make the drawings himself/herself.The person may take the help of others.Such persons who have helped in conducting the experiments,constructing apparatus or making the drawing or models without providing any intellectual inputs are not entitled to be named as inventors.
Where to apply?
Application for the patent has to be filled in the respective patent office as mentioned below.The territorial jurisdiction is decided based on whether any of the following occurrences falls within the territory.

1. Place of residence,domicile or business of the applicant(first mentioned applicant in the case of joint applicants)
2. Place from where the invention actually originated.
3. Address for services in India given by the applicant when he has no place of business or domicile in India.

A foreign applicant should give an address for service in India and the jurisdiction will be decided upon that.An applicant (Indian or foreigner) also can his Patent Agent’s address as address for serving documents,if he/she so wishes.
How to apply?
Steps involved in obtaining a Patent

• To file an application for patent accompanied with either a provisional specification or a complete specification
• To file complete specification,if provisional application was submitted earlier.
• Examination of the application by patent office.
• Acceptance of applications and publication in the gazette of accepted applications.
• Responding and satisfactory overcoming the opposition/objections,if any to the grant of patent.
• Sealing of patent

Application for patent(Form 1) in duplicate should be accompanied by the documents as indicated below. The fee(Rs./- for natural citizen of India or Rs./- for other than a citizen) can be paid within one month.
 

2) COPY RIGHTS

A copyright is a very particular and exclusive right even for reproduction of an original work. This is for material, aesthetic material, literacy, music, film, sound recording, broad casting, software and multimedia.  This offers automatic right for safeguarding any original creation, which is not in need of registration but with limited time.  It does not require the lawyer’s help for settlement.
Protection to copy right does not give any procedure, principle, concept or method or operation, irrespective of the format in which it is explained.  In other words protection of copyright is limited to an inventor’s particular expression of an idea, concepts or process in a tangible medium.  Copyright is sanctioned to prevent others from:
a) Copying the work
b) Publishing and selling copies commercially
c) Renting or lending the work in a free market
d) Doing or demonstrating the work in public
Works protected by Copyright
The types of copyright works are broadly categorized into:
a) Original literary,dramatic,artistic or musical works.
b) Sound recordings,films or broadcasts and
c) The typographical arrangement of published editions.
Literary work also includes:

• A table or compilation other than a database
• A computer program
• Preparatory design material for a computer program
• A database

Rights granted by Copyright
Copyright grants certain rights that are exclusive to its owner. Based on these rights, the copyright owner.

• Can copy the work
• Issue copies of the work to the public
• Rent or lend the work to the public
• Perform,show or play the work in public
• Communicate the work to the public-this includes broadcasting of a work and also electronic transmission and make an adaptation of the work or do an y of the above in relation to an adaptation.

The TRIPS agreement offers a minimum duration of copyright protection to the tune of the life of the inventor or author plus fifty years.  Anyhow rights granted exclusively to the copy right owner may allow others in making fair use of the owner’s work, like for the purpose of review, comment, reporting, teaching, researches, etc.  Of course, the impact of copying an inventor’s work’s commercial value is considered to find out whether the copying is for “fair use”.  In order to secure protection for copy right, the particular work must be an original work made or written in a tangible medium of expression.  The test for such originality consists of two conditions –
(1) work must originate from the inventor and not a copy from others’ works.
(2) the invention or work must have adequate amount of creativity.
 

c) TRADE MARKS

Trademark is for broad identity of specific goods and services allowing differences to be made among different trades.  This is a territorial right, which requires registration, but without any time limit.  Lawyers are needed for guidelines.
A trademark is an identification symbol which is used in the course of trade to enable the purchasing people (buyers) to distinguish one trader’s goods from the similar goods of other traders. These marks also symbolize distinctly the quality of the products.  These marks are in the form of certain ‘wordings’ or can be in the format of logos, designs, sounds, etc. Examples: NIIT, Kodak.
The TRIPS agreement offers the same type of protection for trademarks.  Registration of trademark is issued for definite period of time.  However, in order to avoid confusion, encourage competitions and protect the inventor’s good will, the registration may be renewed.  With reference to intellectual property area, trademarks are national in origin and should comply with provision of TRIPS agreement.
TYPES OF TRADEMARKS
Generic Trademarks
Words, symbols or devices that are not so distinctly distinguishing the goods from others are at the weakest ends, as they are common terms used to identify the goods themselves.  These are termed as generic terms and are not protectable as trademarks.
Descriptive Trademarks
Descriptive trademarks clearly denote or inform the specific purpose, functions, physical characteristic and end use of the product.
Suggestive Trademarks
Suggestive trademarks do not at a glance describe the goods for which the mark is used; yet they rather require some imagination or perception to arrive at a conclusion about the nature of the goods.
The other types of trademarks include arbitrary marks and fanciful marks which are inherently distinctive.
 

d) TRADE SECRETS

A trade secret means information, which is kept confidential as a secret.  This is generally not known in the relevant industry, offering an advantage to its owner over other competitors.  Unlike other types of Intellectual property, this trade secret is fundamentally a “do-it-yourself’ type of protection.  For engineers, inventors, and designers, the trade secrets are to be maintained secretly.  Such trade secrets include some formulae, programmes, methods, progresses or data collections etc.   If there is any improper disclosure or use of the trade secret by another person, the inventor may claim and recover damages resulting from illegal use.
TRIPS agreements offer the protection for trade secrets under the heading ‘protection of undisclosed information’.  The engineer in competitive field should feel their responsibility and status when they make use of such trade secrets till its disclosure.  If the information of a trade secret is available through any legitimate means and if any inventor is responsible illegally for such leaking, then the trade secret may become ineligible for protection.
Enforcement of Intellectual Property Rights is definitely private rights.  If anybody uses the material without the inventors’ permission, the Intellectual Property right owners can use any remedies available under the civil law.
NEED FOR PROTECTION TO IPR
The protection of intellectual property rights is an essential element of economic policy for any country.  Only such protection can stimulate research, creativity and technological innovations by giving freedom to individual inventors and companies to gain the benefits of their creative efforts.
It is a very important issue to plan to protect the intellectual property rights.  The major needs are to:

• Prevent plagiarism.
• Prevent others using it.
• Prevent using it for financial gains.
• Fulfill obligation to funding agency.
• Support income generation strategy.

IMPORTANCE OF IPR
a) Give the inventors exclusive rights of dealing.
b) Permit avoiding of competitors and increase entry barriers.
c) Allow entry to a technical market
d) Generate steady income by issuing license.
e) A registered intellectual property right is property, just like your capital assets. However, it is an asset that can be leveraged through licensing and can therefore be highly valuable. It can also greatly enhance the value of a business when it is sold.
f)Benefits the economy
Sectors that rely on IPR represent a significant part of developed and developing economies, in terms of GDP, employment, tax revenues and strategic importance. IPR also promotes foreign direct investment (FDI) and technology transfers in developed and developing countries.
g)Promotes innovation
Effective IPR increases funding for research and development and other innovation, including by helping firms realize more value from innovations that are protected by IPR than those that are not. IPR underpins development of cultural expression and diversity, and promotes broader dissemination of innovations through publication and licensing.
h) “Open source” relies on IPR
Open source mechanisms are becoming popular in certain sectors such as software (cf. GPL licences, etc.). While the common perception is that such mechanisms are characterized by the absence of any IP protection, it is worth noting that a typical GPL (General Public) licence actually relies on IP rights as it is typically a copyright license which remains valid as long as certain conditions are complied with (e.g. freedoms received by the licensee must be passed on to subsequent users, even where the software is modified).
i) Providing guarantees regarding the quality and safety of products
Many counterfeit products place our children’s and citizens’ safety or health at risk, for instance where vehicle spare parts or drugs are concerned. Enforcing IP rights in respect of such products guarantees at least that the products’ origin is known and that the products are genuine, whereas counterfeit products often do not comply with the applicable safety standards. This is especially true for trade marks, but patent licensing contracts, for instance, may also include quality insurance clauses.