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.
- 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:
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.
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.
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.