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

2. 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

3. What is Intellectual Property ?

Design ?

Piece of Art ?

Book ?

Film ?

Invention or Formula ?

Or just an idea?

Any thing created by mans

Ingenuity, Knowledge & Skill

besides labor and capital.

4. 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.

5. Types of Property

Two types : Tangible& Intangible

Tangible: Land ,Building etc referred to asCorporeal Property

Intangible : Copyright, Idea, Innovation etcreferred to asIncorporeal 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.

6. Classification of IP

IP is generally divided into two categories

a) Industrial Property

b) Copyright

Industrial Property :Rights relating toInventions,Industrial Designs , Trade Marks, Geographical Indication& Appellation of Origin.

Copyright :Rights relating to creation of human mind in the fields ofLiterature, Music, Art and Audio-Visual works(Related Rights &NeighboringRights)

7. Seven types of IP

TRIPS Agreement of the WTO recognizes seven types ofIntellectual 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

8. 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

9. 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 protectedby copyright,but merely the expression of the idea in the work

Example : Painting/Sunset

Research Paper Subject

10. 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

11. 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 thetrade mark

12. 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

13. 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 ofNovelty , involve anInventive stepand are capable ofIndustrial Application

Aim : Rewarding Intellectual Creativity for encouraging economic and technological development

14. 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

15. 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.

16. 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.

17. Balancing the Rightsof 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.

18.

Protection of Individual Property is important but it is equally important in a democratic politythat 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

19. 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.

20.

Experts have indicated towards the possible conflicts between IP, especially the Copyright and the constitutionally guaranteed freedom of speech and expression.

The Honble Courts have zealouslyupheld this fundamental freedom.However such challenge has not yet been mounted.

21. 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.

22. New Legislations/Amendments to Existing Legislations

The Trade Marks Act,1999

The Designs Act, 2000

The Protection of Plant Varieties and Farmers Rights Act, 2001

The Geographical Indication of Goods

(Registration & Protection) Act, 1999

The Semiconductor Integrated CircuitsLayout 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

23. 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 ?

24. 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

25. 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

26. 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.

27. 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.

28. 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

Notan 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

29. 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.

30. 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.

31. Difficulties Primarily Faced in Creation of IPR in Academic & Research Institute: 1. Lack of knowledge regarding thenovelty/innovation of a research workpersuade by a scholar with respect to itssuitability for creation of IPR.( Patent Search) 32. 2. Absence of systematic planning andorganizing of a research programmein reference to filing of patent. - To conceive the part or phasesof any developmental workjustifying its novelty/innovation . 33. 3. Absence of knowledge regarding thetimelydisclosure of invention toregister the rightof inventor- ship/creatorship 4. Lack of idea regarding the type ofinformation,level of technicality and extent of experience/data that can be disclosed or made public bylecturing, publication etc. without harming theinterest of the work with respect to its right forIP. 34. 5. Poor knowledge of preparation oftechnicaland legal write-up of a work to justifyingitssuitability to register as IPR prior to the legalconsideration. 6. Non availability of legal staff / cell in mostof the academic institutes to prepare andplead the case of IPR. 35. Immediate measures to be taken : Activation of the system for Development of Awareness, Attitude and Culture for creation of IP 36.

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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