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Intellectual Property Rights By Prof. Dipak V. Shirbhate Lecturer, Department of Production Engineering, VJTI,Matunga,Mumbai-19 www.vjti.ac.in

Intellectual Property Rights Introduction The Concept of Intellectual Property Different Types of IP Rationale behind Intellectual Property Balancing the Rights of Owner & Society Enforcement of IPR Issues before us regarding IPR

What is Intellectual Property ? Design ? Piece of Art ? Book ? Film ? Invention or Formula ? Or just an idea? Any thing created by man’s Ingenuity, Knowledge & Skill besides labor and capital.

Concept of Property Lay mind : Some material object belonging to a particular person. Concept of Ownership is critical to Concept of Property. Ownership: Right to Possess, Use & Dispose at the desire of the owner & to exclude others. Society recognition is must. Legal Definition : Bundle of rights that the law confers on a person (s) by virtue of ownership and possession of an object.

Types of Property Two types : Tangible & Intangible Tangible: Land ,Building etc… referred to as Corporeal Property Intangible : Copyright, Idea, Innovation etc…referred to as Incorporeal Property Intellectual Property is Incorporeal Property and it derives its value from ideas. IP is a dynamic area while corporeal property is a static one.

Classification of IP IP is generally divided into two categories a) Industrial Property b) Copyright Industrial Property : Rights relating to Inventions, Industrial Designs , Trade Marks, Geographical Indication & Appellation of Origin. Copyright : Rights relating to creation of human mind in the fields of Literature, Music, Art and Audio-Visual works (Related Rights & Neighboring Rights)

Seven types of IP TRIPS Agreement of the WTO recognizes seven types of Intellectual Property Rights 1.Copyright & Related/Neighboring Rights 2.Trade Marks, Trade Names, Service Marks 3.Geographical Indications 4.Industrial Designs 5.Patents 6.Layout Designs of Integrated Circuits 7.Undisclosed Information TRIPS : Trade Related Aspects Of Intellectual Property Rights WTO : World Trade Organization

Copyright Copyright is granted for original, literary musical, artistic or audio-visual works The creations of authors, playwrites, composers,artists and filmmakers It includes rights of reproduction, communication to the public, adaptation and translation of work

continued………. Although originality in expression is a requirement for copyright, the quality of work is not an issue at all. Copyright subsists the work which is the creation of idea(s);it is not the idea(s) which is protected by copyright,but merely the expression of the idea in the work Example : Painting/Sunset Research Paper Subject

Trade Marks/Names/Service Marks Trade Marks & Service Marks : Distinctive Symbols of the company Trade Names :Name of the enterprise that individualizes the name of the company Both are protected as IP Trade Mark to be Distinctive not Deceptive No requirement in law for Quality Standard

Geographical Indications (GI) It is a sign used on goods that have a specific geographical origin & possesses qualities /reputation solely attributed to place of origin and is protected as IP A GI is different from a Trade Mark GI – All producers producing in designated place can use IPR. It also denotes indication of source & appellation of origin Trade Mark- Distinguishes Product/Services of enterprise from others and exclude others from using the trade mark

Industrial Design The ornamental or aesthetic aspect of an article Serves as a tool for product differentiation Attracts customers by enhanced visual appeal and become IP to be protected Applied to wide range of products from industry or handicraft

Patent A Patent is a statutory right granted for a limited period to an inventor in respect of an invention to exclude any other person from manufacturing, using or selling the patented product or from using the patented process, without due permission. Under the TRIPS Agreement of the WTO inventions in all fields of Technology Products or Processes are patentable if they meet the criteria of Novelty , involve an Inventive step and are capable of Industrial Application Aim : Rewarding Intellectual Creativity for encouraging economic and technological development

Layout Designs-Integrated Circuits Layout Designs topography) of integrated circuits is relatively new area in IP Has appeared with computer technology The programming instructions on a computer chip are implemented through a circuitry printed on semiconductor materials. The design of circuitry on the chip requires great investments of knowledge, skills and capital and therefore needs to be protected as IP. Protected as IP against copying but improved design by reverse engineering is regarded as fair. Criteria – Original-No Monopoly Right

Undisclosed Information Undisclosed Information gets recognition as a kind of IP to be protected under TRIPS It virtually restricts honest practices to protection of trade secrets.

Rationale behind IPR IPRs are based on three premises : 1.Creative activity culminating in IP can be increased by encouragement but not in adequate quantity without economic incentives. 2.Adequate Economic Benefits as just rewards for creation of IP through grant of Monopoly Rights even if for limited period. 3.The provision of the Global IP regime to ensure economic returns and safeguarding interests of all concerned.

Balancing the Rights of Owner & Society There can be no absolute rights in IP because all individual rights are subject to the recognition of the rights of other individuals and the rights of the society. Role of State & purpose of Law : Harmonize conflicting claims and achieve balance.

Protection of Individual Property is important but it is equally important in a democratic polity that the State creates condition and necessary structure for wide spread access to opportunities Balancing responsibility of the State reflected in the Indian Law Private Property is strongly respected and legally protected, it is no more a fundamental right

IP & Constitution of India The constitution of India under entry 49 of Union list of matters mentions about Patents, Inventions, Designs, Copyright, Trade Marks & Merchandise;but it makes no specific reference to IP However IP as a form of property can be put under Article 300A dealing with property and be entitled to a legal right.

Experts have indicated towards the possible conflicts between IP, especially the Copyright and the constitutionally guaranteed freedom of speech and expression. The Hon’ble Courts have zealously upheld this fundamental freedom.However such challenge has not yet been mounted.

Enforcement of IPR India and the TRIPS Agreement : India has to a large extent complied with its obligations under TRIPS through a series of amendments to its existing laws and through new legislations. However the TRIPS agreement leaves some room to deal with various issues at national level such as definition of an invention, exception to exclusive rights, compulsory licenses and others.

New Legislations/Amendments to Existing Legislations The Trade Marks Act,1999 The Designs Act, 2000 The Protection of Plant Varieties and Farmer’s Rights Act, 2001 The Geographical Indication of Goods (Registration & Protection) Act, 1999 The Semiconductor Integrated Circuits Layout Designs Bill, 1999 The Patents Act 1970,as amended by Patents (Amendment) Act, 2002 The Copyright Act, 1957 together with International Copyright Order, 1999 All issues regarding IPR in India are governed by these legislations

Issues before Us What is a patentable Invention ? “ A new product or process involving an inventive step and capable of industrial application” What is not patentable ?

Procedure for Obtaining Patent Who can apply ? A person claiming to be the true and first inventor of an invention Filing a Patent Application: Only one application is filed for one invention along with provisional or complete specification

The Specification must contain : Title, sufficiently indicating the subject matter Relevant drawings/graphics Full & particular description of invention Details of its operation or use and the method by which it is to be performed Disclosure of the best method of performing the invention Claims defining the scope of the invention substantiated by the disclosure Abstract providing technical information Declaration as to the inventiorship of the invention

Search for anticipation by previous publication and by prior claim The search requires investigation for Prior Applications Patents Already Granted Already Published or Claimed Any objection raised by the examiner are to be removed by applicant within 12 months.

Acceptance & Advertisement Controller of Patents notifies it to the applicant and also advertises it in the Official Gazette for public inspection From date of advertisement to the date of sealing the patent, the applicant enjoys the privileges and rights as if a patent had been sealed on the date of advertisement except the right of infringement.

Opposition to the grant of Patent Notice to Controller within 4 months from the date of advertisement on following grounds : Wrongfully obtained by the inventor Anticipated in a specification filed for another patent earlier Publicly known in India before priority date of claim Not an invention within the meaning of the Act The information furnished is false Geographical origin is not disclosed or falsely disclosed Convention application not filed in India in prescribed time for the same invention in a convention country

Grant of Patent Where the application for a patent has been accepted without opposition or after disposing the opposition, a patent shall be granted if the applicant makes a request within 6 months of advertisement. The patent so granted shall be sealed with the seal of the patent office and the date shall be entered in the register.

Rights of Patent Right to exploit the patent Right to grant license etc Right to surrender Right to sue for infringement LIMITATIONS : Purposes of Government For imparting instructions to pupils Medicine or Drug imported by the Government for its use in hospital, medical institute, Lab, maintained by or on behalf of the Government.

Difficulties Primarily Faced in Creation of IPR in Academic & Research Institute: 1. Lack of knowledge regarding the novelty/innovation of a research work persuade by a scholar with respect to its suitability for creation of IPR.( Patent Search)

2. Absence of systematic planning and organizing of a research programme in reference to filing of patent. - To conceive the part or phases of any developmental work justifying its novelty/innovation .

3. Absence of knowledge regarding the timely disclosure of invention to register the right of inventor- ship/creatorship 4. Lack of idea regarding the type of information, level of technicality and extent of experience /data that can be disclosed or made public by lecturing, publication etc. without harming the interest of the work with respect to its right for IP.

5. Poor knowledge of preparation of technical and legal write-up of a work to justifying its suitability to register as IPR prior to the legal consideration. 6. Non availability of legal staff / cell in most of the academic institutes to prepare and plead the case of IPR.

Immediate measures to be taken : Activation of the system for Development of Awareness, Attitude and Culture for creation of IP

The intellectual property thus vests in a creation of human mind involving knowledge, labor and skill. It is the result of sustained intellectual application and efforts by inventors/authors/artists Powerful factor of production and wealth generation Significant competitive advantage over rivals in the trade and industry

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