LM-502 (Law of Industrial & Intellectual Property-II

8/18/2019 LM-502 (Law of Industrial & Intellectual Property-II

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LM-502

Law of Industrial and Intellectual Property-II

UNIT-I Basic Concepts, conentions and !r"ani#ations

$%$ Concept of Intellectual Property &i"'ts%

Intellectual property Right (IPR) is a term used for various legal entitlements, which attach to certain typesof information, ideas, or other intangibles in their expressed form. The holder of this legal entitlement isgenerally entitled to exercise various exclusive rights in relation to the subect matter of the IntellectualProperty. The term intellectual property reflects the idea that this subect matter is the product of the mind or the intellect, and that Intellectual Property rights may be protected at law in the same way as any other formof property. Intellectual property laws vary from urisdiction to urisdiction, such that the ac!uisition,registration or enforcement of IP rights must be pursued or obtained separately in each territory of interest.Intellectual property rights (IPR) can be defined as the rights given to people over the creation of their minds. They usually give the creator an exclusive right over the use of his"her creations for a certain periodof time.

('at is Intellectual Property &i"'ts)

Intellectual property rights (IPR) can be defined as the rights given to people over the creation of their minds. They usually give the creator an exclusive right over the use of his"her creations for a certain periodof time.Intellectual property (IP) refers to creations of the mind# inventions, literary and artistic wor$s, and symbols,names, images, and designs used in commerce.

Cate"ories of Intellectual Property

%ne can broadly classify the various forms of IPRs into two categories#& IPRs that stimulate inventive and creative activities (patents, utility models, industrial designs, copyright,

plant breeders' rights and layout designs for integrated circuits) and& IPRs that offer information to consumers (trademar$s and geographical indications).

IPRs in both categories see$ to address certain failures of private mar$ets to provide for an efficientallocation of resourcesIP is divided into two categories for ease of understanding#

$% Industrial Property

2% Copyri"'t

Industrial property, which includes inventions (patents), trademar$s, industrial designs, and geographicindications of source and

Copyri"'t, which includes literary and artistic wor$s such as novels, poems and plays, films, musical

wor$s, artistic wor$s such as drawings, paintings, photographs and sculptures, and architectural designs.Rights related to copyright include those of performing artists in their performances, producers of

phonograms in their recordings, and those of broadcasters in their radio and television programs

Intellectual property s'all include t'e ri"'t relatin" to*

i. iterary, artistic and scientific wor$sii% Performance of performing artistsiii% Inventions in all fields of human endeavouri% *cientific discoveries% Industrial designsi% Trademar$s, service mar$s and etcii% Protection against unfair competition.

('at is a property)


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Property designates those things that are commonly recogni+ed as being the possessions of an individual or agroup. right of ownership is associated with property that establishes the good as being -ones own thing-in relation to other individuals or groups, assuring the owner the right to dispense with the property in amanner he or she deems fit, whether to use or not use, exclude others from using, or to transfer ownership.Properties are of two types / tangible property and intangible property i.e. one that is physically present andthe other which is not in any physical form. 0uilding, land, house, cash, ewellery are few examples of tangible properties which can be seen and felt physically. %n the other hand there is a $ind of valuable

property that cannot be felt physically as it does not have a physical form. Intellectual property is one of theforms of intangible property which commands a material value which can also be higher than the value of atangible asset or property.

&i"'ts protected under Intellectual Property

The different types of Intellectual Property Rights are#i. Patentsii% 1opyrightsiii% Trademar$si% Industrial designs% Protection of Integrated 1ircuits layout design

i% 2eographical indications of goodsii% 0iological diversityiii% Plant varieties and farmers rightsi+% 3ndisclosed informationa. Intellectual Property

4. Inventions5. Trademar$s6. Industrial design7. 2eographical indications

b. 1opyright4. 8ritings

5. Paintings6. 9usical wor$s7. :ramatics wor$s;. udiovisual wor$s. 0roadcast?. *culpture4@. :rawings44. rchitectural wor$s etc.

IP& as Instruents of eelopenta. Aey drivers of economic performance in RB: based growth models

b. Intellectual property policies do affect the extent and nature of investments underta$en by multinationalenterprises. t the same time, relative to other factors determining foreign investment decisions, IPRs seemto be of relatively minor importance.

Intellectual Property Trends . India/ :uring 5@@?/4@, 67,5>= patent applications were filed,


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/ :uring 5@@?/4@, 4,74,?76 trademar$ applications were filed, 5;>=; examined and ,55,>5;.

/ :uring 5@@?/4@, 7@ 2eographical indications applications were filed and 47 were registered. totalof 45@ 2eographical Indications have been registered till 64st 9arch, 5@4@.

/ :uring 5@@?/4@, 475 applications were received for access of bio/resources for research"commercialuse, transfer of research results, intellectual property rights and third party transfer. Totally, 46agreements have been signed. *o far, 44 patents have been granted on the applications cleared by

C0. The C0 has also received a royalty amount of Rs.6=.>? la$hs from the applicants who haveexported bio/resources.

/ In 5@4@/44, a total of crops were received by the uthority for see$ing plant variety protection under the ct. The applications belong to new (6?;), extant (54


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on the rest of the world. ccordingly, countries have recogni+ed this interdependence and have called for a

broadening of international agreements"arrangements involving intellectual property. Third, new

reprographic and information storage technologies permit unauthori+ed copying to ta$e place faster and

more efficiently than ever, undermining the creator's wor$. There is a general feeling in the developed

countries that much of this sort of copying ta$es place in the third world due to the relaxation of legal

standards. ll these factors have prompted the international community as a whole to accord due recognition

to intellectual property and intellectual property regime.

Thus, the above reasons widen the scope of intellectual property rights. mong the bundles of intellectual

property rights, copyright that deals with the protection of literary, artistic and scientific wor$s is one.

T'e Concept of Intellectual Property

Intellectual property, very broadly, means the legal property which results from intellectual activity in the

industrial, scientific and artistic fields. 1ountries have laws to protect intellectual property for two main

reasons. %ne is to give statutory expression to the moral and economic rights of creators in their creations

and such rights of the public in access to those creations. The second is to promote, as a deliberate act of government policy, creativity and the dissemination and application of its results and to encourage fair

trading which would contribute to economic and social development.

2enerally spea$ing, IP law aims at safeguarding creators and other producers of intellectual goods and

services by granting them certain time/ limited rights to control the use made of those productions. These

rights do not apply to the physical obect in which the creation may be embodied but instead to the

intellectual creation as such. IP is traditionally divided into two branches# Eindustrial property and

copyrightF. The convention establishing the 8orld Intellectual Property %rgani+ation (8IP%), concluded in

*toc$holm on uly 47, 4?


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The expression industrial property covers inventions and industrial designs. *imply stated, inventions are

new solutions to technical problems, and industrial designs are aesthetic creations determining the

appearance of industrial products. In addition, industrial property includes trademar$s, service mar$s,

commercial names and designations, including indications of source and appellations of origin, and

protection against unfair competition. Dence the aspect of intellectual creations /although existent /is less

prominent, but what counts here is that the obect of industrial property typically consists of signs

transmitting information to consumers, in particular, as regards products and services offered on the mar$et,

and that the protection is directed against unauthori+ed use of such signs which is li$ely to mislead

consumers and misleading practices in general.

*cientific discoveries are not the same as inventions. The general treaty on the international recording of

scientific discoveries "4?=>" defines a scientific discovery as Jthe recognition of phenomena, properties or

laws of the material universe not hitherto recogni+ed and capable of verification. E(rt. 4(4)(i)). Inventions

are new solutions to specific technical problems. *uch solutions must, naturally rely on the properties or

laws of the materials universe "otherwise they could not be materially or Jtechnically' applied", but those

properties or laws need not be properties or laws' not hitherto recogni+ed'. n invention puts to new use, to

new technical use, the said properties or laws, whether they are recogni+ed (EdiscoveredF) simultaneouslywith ma$ing the invention or whether they were already recogni+ed (EdiscoveredF) before and

independently from the invention.

Industrial and cultural development may be favored by stimulating creative activity and facilitating the

transfer of technology and the dissemination of literary and artistic wor$s. In the Kthiopian legal system too

the protection of intellectual property rights is afforded at constitutional level. The G:RK 1onstitution

recogni+es that every Kthiopian citi+en has the right to ownership of private property with certain

restrictions. rticle 7@(5) defines private property as any tangible or intangible product which has value and

is produced by the labor, creativity, enterprise or capital of an individual citi+en, associations which enoy

uridical personality under the law. Thus, the constitution declares protection for every property whether it is

tangible or intangible. That means protection is afforded e!ually for intellectual property rights as any other

property since they are intangible products.

It is difficult to determine what types of ownership we should allow for non corporeal, intellectual obects,

such as writings, inventions and secret business information. There are intellectual properties which are not

products of the mind. Gor instance, all trademar$s are not products of the mind. Trademar$s creation does

not necessarily re!uire intellectual activity. The same holds true for geographic indication. They don't

re!uire the wor$ of the mind li$e patent and copyright.

IP is a bundle of legal rights resulting from intellectual creativity in industrial, scientific, artistic and literary

fields. This definition is from the point of view of rights. IP is legal protection accorded to wor$s of the mind

in distinction from manual wor$ (result of physical labour). It is a legal protection accorded to incorporeal

ownership.

Regarding protection of IP rights, there were historical, philosophical and epistemological problems.

Distorically, reservation exists as to the protection of such rights as they don't exhibit essential

characteristics of property, i.e. material existence. They consider corporeal chattels only as propriety. Gor

them property should be subect to appropriation"occupancy".

The other problem is related to problems of philosophy. They believed that human beings cannot be

regarded as a creator of something. They say human beings cannot create something. 8hich is also reflected

in religionsH The problems also relate with epistemology. 8hat we reflect is what we observe from the


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world (our experience, life experience). The then contemporary writers wrote that IP lac$s essential

characters to be considered property.

Through time the laws of various countries started to incorporate protection to intellectual creativity, though

they are independent. There are two factors in lumping intellectual property rights together. These

are#&onceptual 'asis and (istorical 'asis

istorical

The convention establishing the 8IP% was signed in *toc$holm in 4?>6/ the Paris 1onvention on industrial property and 4>>?6

the two secretaries united. 3nited International 0ureaux for the Protection of IP (0IRPI) became 8IP%.

Conceptual

IP rights obects (enterprises) are inherently inappropriable. They are intangible by nature. 3se by others

cannot be denied by using the possession of a property first created. %nce you have written a boo$ and

published it then the public may ma$e use of that property.

1cope of Intellectual Property &i"'ts

Intellectual property rights include copyright, patent, trademar$, geographic indication of origin, industrial

design, trade secrets, database protection laws, publicity rights laws, laws for the protection of plant

varieties, laws for the protection of semi/conductor chips (which store information for later retrieval), etc.

There is a conventional mode of classification of intellectual property as industrial property and copyrights.

Industrial properties include inventions (patent), property interest on minor invention (3tility model

certificate) and commercial interests (Trade 9ar$s, trade names, geographical indications, and industrial

design), plant breeder rights, biodiversity, etc.

Patents

patent is a type of intellectual property right which allows the holder of the right to exclusively ma$e use

of and sale an invention when one develops an invention. Invention is a new process, machine, manufacture,

composition of matter. It is not an obvious derivation of the prior art (It should involve an inventive step).

person who has got a patent right has an exclusive right. The exclusive right is a true monopoly but its grant

involves an administrative process.

Copyri"'t


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It is an intellectual property which does not essentially grant an exclusive right over an idea but the

expressions of ideas which ma$es if different from patent law. Patent is related with invention / technical

solution to technical problems. 1opyright is a field which has gone with artistic, literary creativity/ creativity

in scientific wor$s, audio/visual wor$s, musical wor$s, software and others. There are neighboring rights.

These are different from copyright but related with it L performers in a theatre, dancers, actors, broadcasters,

producers of sound recorders, etc. It protects not ideas but expressions of ideas as opposed to patent.

1opyright protects original expression of ideas, the ways the wor$s are done the language used, etc. It

applies for all copyrightable wor$s. 1opyright lasts for a longer period of time. The practice is life of author

plus ;@ years after his"her life. dministrative procedures are not re!uired, unli$e patent laws, in most laws

but in merica depositing the wor$ was necessary and was certified thereon but now it is abolished.

Industrial esi"n Law

*ome call this design right (Kuropean) and some call it patentable design, industrial design (8IP% and other

international organi+ation). design is a $ind of intellectual property which gives an exclusive right to a

person who has created a novel appearance of a product. It deals with appearance# how they loo$ li$e.ppearance is important because consumers are interested in the outer appearance of a product. It is

exclusively concerned with appearance, not !uality.

The principles which have been utili+ed in developing industrial design law are from experiences of patent

and copyright laws. It shares copyright laws because the design is artistic. It shares patent law because there

are scientific considerations. :esign law subsists in a wor$ upon registration and communication. It ma$es

them close to patent law since they are also founded in patent law. :uration is most of the time 5@ years li$e

the patent law trademar$ Rights law.

Tradears &i"'ts Law

It is a regime of the law giving protection to graphic representation to words or logos or depending on the

urisdiction !uestion such as sound or smells which are distinctive in nature and serve as source

identification. There is also a recent phenomenon which is representing goods in their smell and sound. It is

to be found on the goods associated with them. It enables the customer to identify the goods from others.

They serve as a source identifier. Trademar$s perform communication function. %nce there is a valid

representation, it gives the mar$ owner an exclusive right. It begins with registration and publication of the

mar$. 0ut there are exceptions which serve what trademar$s registered serve which are not registered. It

means they deserve protection even though they are not registered. They exist forever so long as the good

with which they are associated continue to be sold. 0ut they re!uire renewal.

&i"'t of Pu3licity

It protects the right to use one's own name or li$eness for commercial purposes.

/eo"rap'ic Indication

It is indications on products of the geographic origin of the goods. It indicates the general source. The

indication relates to the !uality or reputation or other characteristics of the good. Gor example, Emade in


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KthiopiaF is not influenced by the geographical Indication. 2eographical indications are sometimes called

appellations of origin. Gor example, E*heno legaF, E*hampagneF (name of a region in Grance) are

geographical indications.

Trade 1ecrets

It gives the owner of commercial information that provides a competitive edge the right to $eep others from

using such information if the information was improperly disclosed to or ac!uired by a competitor and theowner of the information too$ reasonable precautions to $eep it secret. It protects confidential secrets of

some commercial value. The holder of the secret wants this information to be protected some protect the

holder from an unauthori+ed disclosure of the information. tort law, unfair competition or contract law can

protect such information which is secret "confidential information". The holder (owner) has to do his"her best

to $eep the information secret. Trade secrets exist without registration as it is to ma$e the information

public, for example, the formula of 1oca 1ola. Information that are protected in trade secrets can be

patentable if they are novel and non obvious. 0ut it is, most of the time, not to ma$e the secret public.

Dowever, their full/fledged IP rights are contestable.

Nature of Intellectual Property

Intellectual properties have their own peculiar features. These features of intellectual properties may serve to

identify intellectual properties from other types of properties. Thus, we will discuss them in brief.

$% Territorial

ny intellectual property issued should be resolved by national laws. 8hy is it an issueH 0ecause

intellectual property rights have one characteristic which other national rights do not have. In ownership of

intellectual property of immovable properties, issues of cross borders are not probable. 0ut in intellectual properties, it is common. film made in Dollywood can be seen in other countries. The mar$et is not only

the local one but also international. If a design in 1hina is imitated by another person in Grance which law

would be applicableH

2% /iin" an e+clusie ri"'t to t'e owner

It means others, who are not owners, are prohibited from using the right. 9ost intellectual property rights

cannot be implemented in practice as soon as the owner got exclusive rights. 9ost of them need to be tested

by some public laws. The creator or author of an intellectual property enoys rights inherent in his wor$ to

the exclusion of anybody else.

4% ssi"na3le

*ince they are rights, they can obviously be assigned (licensed). It is possible to put a dichotomy between

intellectual property rights and the material obect in which the wor$ is embodied. Intellectual property can

be bought, sold, or licensed or hired or attached.

6% Independence

:ifferent intellectual property rights subsist in the same $ind of obect. 9ost intellectual property rights are

li$ely to be embodied in obects.

5% 1u37ect to Pu3lic Policy


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They are vulnerable to the deep embodiment of public policy. Intellectual property attempts to preserve and

find ade!uate reconciliation between two competing interests. %n the one hand, the intellectual property

rights holders re!uire ade!uate remuneration and on the other hand, consumers try to consume wor$s

without much inconvenience. Is limitation uni!ue for intellectual propertyH

8% iisi3le 9:ra"entation;

*everal persons may have legally protected interests evolved from a single original wor$ without affectingthe interest of other right holders on that same item. 0ecause of the nature of indivisibility, intellectual

property is an inexhaustible resource. This nature of intellectual property derives from intellectual property's

territorial nature. Gor example, an inventor who registered his invention in Kthiopia can use the patent

himself in Kthiopia and icense it in 2ermany and assign it in Grance. lso, copyright is made up of

different rights. Those rights may be divided into different persons# publishers, adaptors, translators, etc.


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$%2 billion in 5@@@) (0anco 1entral do 0rasil data). Goreign direct investment occurs when aTrade Cegotiations 1ommittee (TC1) has a sufficient cost or technological advantage over firms in the hostcountry to offset the higher costs of operating internationally.


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patent system in the broader range of national development policy measures and to formulate a patent policythat meets the interests of each country.


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mar$et, India currently holds a modest 4 / 5N share, but it has been growing at approximately 4@N per year.India gained its foothold on the global scene with its innovatively/engineered generic drugs and active

pharmaceutical ingredients (PI), and it is now see$ing to become a maor player in outsourced clinicalresearch as well as contract manufacturing and research. There are =7 3.*. G:/approved manufacturingfacilities in India, more than in any other country outside the 3.*.

9oreover, in 5@@;, almost 5@N of all bbreviated Cew :rug pplications (C:) to the G: areexpected to be filed by Indian companies. 2rowth in other fields notwithstanding, generics is still a large

part of the picture. ondon research company 2lobal Insight estimates that Indias share of the globalgenerics mar$et will have risen from 7 to 66N by 5@@=.

:orei"n direct inestent channel 8hen foreign direct investment (G:I) is considered as a source of technology transfer, northern innovators may shift production to the *outh, reducing competition for resources in the Corth .

Licensin" c'annel If technology is transferred through licensing, stronger IPR protection in the *outhresults in greater innovation in the Corth, and increased licensing to the *outh. icensing has the advantageto northern firms of higher profits due to lower production costs in the *outh, but involves other costs in

terms of contract negotiations, transferring the necessary technology and in the rents that the innovator mustgive to the licensee to discourage imitation.

Conclusion

*trong IPR protection will hinder rather than facilitatetechnology transfer and indigenous learning activitiesin theearly stages of industriali+ation, when learning ta$es placethrough reverse engineering and duplicativeimitation ofmature foreign products. It is only after countries haveaccumulated sufficient indigenouscapabilities and anextensive science and technology infrastructure capable ofunderta$ing creative imitationthat IPR protection becomes animportant element in technology transfer and industrialactivities. *imilarly,the development experience of Indiaindicates the importance of wea$ IPR protection in building uplocalcapabilities, even when countries are at very low levelsof development.


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$%4 T&IP1, PCT, UP!= Conentions

T< /&


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T< PT


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(iii) since each international application is published together with an international search report, third parties are in a better position to formulate a well/founded opinion about the patentability of the claimedinvention.The P1T created a 3nion. The 3nion has an ssembly. Kvery *tate party to the P1T is a member of thessembly.mong the most important tas$s of the ssembly are the amendment of the Regulations issued under theTreaty, the adoption of the biennial program and budget of the 3nion and the fixing of certain fees connected with the use of the P1T system.:etails concerning the P1T can be most simply obtained by consulting the rotecting your *nentions

+broad: re-uently +sked uestions about the atent &ooperation /reaty 0 , the &/ +pplicants4uide and the &/ 5ewsletter , published by 8IP%.

The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 4?=@. It providesa unified procedure for filing patent applications to protect inventions in each of its contracting states.

patent application filed under the PCT is called an international application, or PCT application. The Patent 1ooperation Treaty (P1T) assists applicants in see$ing patent protection internationally for their inventions, helps patent %ffices with their patent granting decisions, and facilitates public access to a wealthof technical information relating to those inventions. 0y filing one international patent application under the

P1T, applicants can simultaneously see$ protection for an invention in 47> countries throughout theworld. Read more about the P1T.

The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 4?=@. It provides

a unified procedure for filing patent applications to protect inventions in each of its contracting states.

patent application filed under the P1T is called aninternational application, or PCT application.

single filing of a P1T application is made with a Receiving %ffice (R%) in one language. It then results in

a search performed by an International *earching uthority (I*), accompanied by a written opinion

regarding the patentability of the invention, which is the subect of the application. It is optionally followed

by a preliinary e+aination, performed by an International Preliminary Kxamining uthority (IPK).O7 Ginally, the relevant national or regional authorities administer matters related to the examination of

application (if provided by national law) and issuance of patent.

P1T application does not itself result in the grant of a patent, since there is no such thing as an

-international patent-, and the grant of patent is a prerogative of each national or regional authority.O; In

other words, a P1T application, which establishes a filing date in all contracting states, must be followed up

with the step of entering into national or regional phases to proceed towards grant of one or more patents.

The P1T procedure essentially leads to a standard national or regional patent application, which may be

granted or reected according to applicable law, in each urisdiction in which a patent is desired.

The contracting states,O


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International Union for the Protection of New Varieties of Plants (UPOV)

The International Union for t'e Protection of New =arieties of Plants or UP!=

3P%Q was established by the International 1onvention for the Protection of Cew Qarieties of Plants. The

1onvention was adopted in Paris in 4? and 4??4. The obective of the

1onvention is the protection of new varieties of plants by an intellectual property right. 0y codifyingintellectual property for plant breeders, 3P%Q aims to encourage the development of new varieties of plants

for the benefit of society.

Gor plant breeders rights to be granted, the new variety must meet four criteria under the rules established

by 3P%Q#

4. The new plant must be novel, which means that it must not have been previously mar$eted in thecountry where rights are applied for.

5. The new plant must be distinct from other available varieties.

6. The plants must display homogeneity.

7. The trait or traits uni!ue to the new variety must be stable so that the plant remains true to type after repeated cycles of propagation.

Protection can be obtained for a new plant variety (legally defined) however it has been obtained, e.g.

through conventional breeding techni!ues or genetic engineering.

*ystem of protection

The 1onvention defines both how the organi+ation must be governed and run, and the basic concepts of

plant variety protection that must be included in the domestic laws of the members of the 3nion. These

concepts include#

• The criteria for new varieties to be protected# novelty, distinctness, uniformity, and stability.

• The process for application for a grant

•Intellectual property rights conferred to an approved breeder

• Kxceptions to the rights conferred to the breeder

• Re!uired duration of breeders right

• Kvents in which a breeders rights must be declared null and void

2enetically modified plant varieties

The 3P%Q has been updated several times to reflect changing technology and increased understanding of

how plant variety intellectual property protection must wor$. The last revision was in 4??4, and specifically

mentioned genetic engineering only insofar as it is a method of creating variation. Under t'e UP!=

Conention alone, genetically modified crops and the intellectual property rights granted to them are no

https://en.wikipedia.org/wiki/Parishttps://en.wikipedia.org/wiki/Parishttps://en.wikipedia.org/wiki/Intellectual_propertyhttps://en.wikipedia.org/wiki/Plant_improvementhttps://en.wikipedia.org/wiki/Plant_improvementhttps://en.wikipedia.org/wiki/Plant_breeders'_rightshttps://en.wikipedia.org/wiki/Plant_variety_(law)https://en.wikipedia.org/wiki/Genetic_engineeringhttps://en.wikipedia.org/wiki/Genetic_engineeringhttps://en.wikipedia.org/wiki/Parishttps://en.wikipedia.org/wiki/Intellectual_propertyhttps://en.wikipedia.org/wiki/Plant_improvementhttps://en.wikipedia.org/wiki/Plant_breeders'_rightshttps://en.wikipedia.org/wiki/Plant_variety_(law)https://en.wikipedia.org/wiki/Genetic_engineering


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different from the intellectual property rights granted for traditionally bred varieties. It is important to note

that this necessarily includes the ability to use protected varieties for subsistence farming and for research.

In %ctober 5@@7, two oint *ymposia were held in 2eneva with the 8orld Intellectual Property

%rgani+ation (8IP%). These *ymposia were the 8IP%/3P%Q *ymposium on Intellectual Property Rights

in Plant 0iotechnology (57 %ctober 5@@6) and the 8IP%/3P%Q *ymposium on the 1o/Kxistence of Patents

and Plant 0reeders' Rights in the Promotion of 0iotechnological :evelopments (5; %ctober 5@@6). Co new

policy was created at either of these events, but a consensus emerged that both patents and plant/breeders

rights must combine to promote plant biotechnology.

The greement on TRIPs re!uires 8T% 9embers to provide either patent or introduce an Eeffective sui generis systemF for the protection of plant varieties.4 This led to the formation of the 3nion Internationale pour la Protection des %btentions Qgtales (3P%Q) or the International 3nion for the Protection of CewQarieties of Plants in 4?


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companies who are the breeders. It does not recognise the notion of prior $nowledge of the farmingcommunity and conse!uently ta$es no notice of the farmers right to the benefits flowing out of such$nowledge.The move to oin 3P%Q is not suited for an agrarian economy li$e India where seeds are essentially

produced by farmers and farmers/ cooperative and not by private corporations.

• 3P%Q is anti/farmer as, among other disadvantages, it restricts his right to sae seeds to replant, a

practice followed by =; percent of the Indian farming community. lthough the first amendment in 4?=> put limited restrictions on protected seed, the 4??4 amendment brought in very strong protection asregards the same. In the latter amendment, the exemption for farmers to save seed has becomeproisional.

• It does not recognise or support communities in'erent ri"'ts to 3iodiersity and their space to

innovate.

• 3P%Q aims at plant patents and now also permits dual protection of varieties. This effectively means

that in the 3P%Q system, the same variety can be protected by Plant 0reeders' Right and patents.

• 1ontrary to the 10:, the 3P%Q model does not provide for 3enefit s'arin" with the farmers. *o they

end up paying royalties for their own germplasm that has been tampered with and repac$aged by theTrans Cational 1orporations.

• The costs of testing, approval and ac!uiring an 3P%Q authori+ed 0reeders' Right certificate could be

extremely e+pensie which shall effectively preclude the participation of small companies, farmers' co/operatives or farmer"breeders, but for the largest seed companies.

• 3P%Q model has the potential to aggravate the erosion of 3iodiersity which can prove extremely

dangerous, especially in poor countries. 1hemicals or genetic engineering will be used to try to

compensate for crop vulnerability which farmers cannot afford. 3niformity leads to harvest loss and

further food insecurity.

• 1ontrary to the developed nations, research is conducted in India by public institutions li$e various

agricultural organi+ations. The control of plant varieties in the hands of big seed companies and

privati+ation of genetic resources can affect researc' negatively. dditionally, 3P%Q rules on Sessential

derivation will act as a disincentive to researchers since TC1s can bully researchers to submit to

accusations of plagiarism.

C!NCLU1I!N

In conclusion, the author would li$e to reiterate that in the 3P%Q system, rights are merely granted to the breeders and not to the farmers. Dence, it is not suited for a developing nation li$e India where a si+eablenumber of population ban$ directly on the agricultural sector for their livelihood. 3nli$e the west, India doesnot have big seed companies in essential seed sectors and our maor seed producers are farmers. Thegovernment must essentially concentrate on protecting the interests of the farmers in his role as producer aswell as consumer of seed.

India needs to ta$e a firm stand and reect 3P%Q acting as a role model for other developing nations. India's oining 3P%Q could have Ea domino effectF on nine other sian developing countries that are currentlyconsulting 3P%Q on their national legislations. The developing countries must evolve a sui generislegislation which ta$es a balanced approach between giving rights to farmers, formal plant breeders andtraditional communities on their genetic resources. In this respect the gene campaign had proposed the1onvention of Garmers and 0reeders (1oGa0), which has been discussed in various national andinternational forums. The 3C:P Duman :evelopment Report (D:R) 4??? has commended 2ene1ampaign's 1oGa0 as an alternative to 3P%Q. It described 1oGa0 as a “strong and coordinated


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international proposal% which “offers deeloping countries an alternatie to following 6uropean legislationby focusing legislation on needs to protect farmers7 rights to sae and reuse seed and to fulfill the food and

nutritional security goals of their people.%


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$%6 UNCT* &eport

United Nations Conference on Trade and Development (UNCTD)

The United Nations Conference on Trade and eelopent (UNCT) was established in 4? million in core expenditures and M=5

million in extra/budgetary technical assistance funds. It is a member of the 3nited Cations :evelopment

2roup.O5 There are non/governmental organi+ations participating in the activities of 3C1T:.

https://en.wikipedia.org/wiki/United_Nationshttps://en.wikipedia.org/wiki/United_Nationshttps://en.wikipedia.org/wiki/United_Nations_General_Assemblyhttps://en.wikipedia.org/wiki/International_tradehttps://en.wikipedia.org/wiki/Foreign_direct_investmenthttps://en.wikipedia.org/wiki/Developing_countrieshttps://en.wikipedia.org/wiki/United_Nations_Conference_on_Trade_and_Development#cite_note-1https://en.wikipedia.org/wiki/Generalised_System_of_Preferenceshttps://en.wikipedia.org/wiki/Generalised_System_of_Preferenceshttps://en.wikipedia.org/wiki/GATThttps://en.wikipedia.org/wiki/GATThttps://en.wikipedia.org/wiki/World_Trade_Organizationhttps://en.wikipedia.org/wiki/World_Trade_Organizationhttps://en.wikipedia.org/wiki/World_Trade_Organizationhttps://en.wikipedia.org/wiki/International_Monetary_Fundhttps://en.wikipedia.org/wiki/World_Bankhttps://en.wikipedia.org/wiki/New_International_Economic_Orderhttps://en.wikipedia.org/wiki/New_International_Economic_Orderhttps://en.wikipedia.org/wiki/New_International_Economic_Orderhttps://en.wikipedia.org/wiki/Genevahttps://en.wikipedia.org/wiki/Genevahttps://en.wikipedia.org/wiki/New_Delhihttps://en.wikipedia.org/wiki/New_Delhihttps://en.wikipedia.org/wiki/New_Delhihttps://en.wikipedia.org/wiki/Santiagohttps://en.wikipedia.org/wiki/Santiagohttps://en.wikipedia.org/wiki/Nairobihttps://en.wikipedia.org/wiki/Nairobihttps://en.wikipedia.org/wiki/Manilahttps://en.wikipedia.org/wiki/Manilahttps://en.wikipedia.org/wiki/Belgradehttps://en.wikipedia.org/wiki/Belgradehttps://en.wikipedia.org/wiki/Cartagena,_Colombiahttps://en.wikipedia.org/wiki/Johannesburghttps://en.wikipedia.org/wiki/Bangkokhttps://en.wikipedia.org/wiki/S%C3%A3o_Paulohttps://en.wikipedia.org/wiki/Accrahttps://en.wikipedia.org/wiki/Accrahttps://en.wikipedia.org/wiki/Dohahttps://en.wikipedia.org/wiki/Genevahttps://en.wikipedia.org/wiki/Switzerlandhttps://en.wikipedia.org/wiki/Switzerlandhttps://en.wikipedia.org/wiki/United_Nations_Development_Grouphttps://en.wikipedia.org/wiki/United_Nations_Development_Grouphttps://en.wikipedia.org/wiki/United_Nations_Development_Grouphttps://en.wikipedia.org/wiki/United_Nations_Conference_on_Trade_and_Development#cite_note-2https://en.wikipedia.org/wiki/United_Nationshttps://en.wikipedia.org/wiki/United_Nations_General_Assemblyhttps://en.wikipedia.org/wiki/International_tradehttps://en.wikipedia.org/wiki/Foreign_direct_investmenthttps://en.wikipedia.org/wiki/Developing_countrieshttps://en.wikipedia.org/wiki/United_Nations_Conference_on_Trade_and_Development#cite_note-1https://en.wikipedia.org/wiki/Generalised_System_of_Preferenceshttps://en.wikipedia.org/wiki/Generalised_System_of_Preferenceshttps://en.wikipedia.org/wiki/GATThttps://en.wikipedia.org/wiki/World_Trade_Organizationhttps://en.wikipedia.org/wiki/International_Monetary_Fundhttps://en.wikipedia.org/wiki/World_Bankhttps://en.wikipedia.org/wiki/New_International_Economic_Orderhttps://en.wikipedia.org/wiki/Genevahttps://en.wikipedia.org/wiki/New_Delhihttps://en.wikipedia.org/wiki/Santiagohttps://en.wikipedia.org/wiki/Nairobihttps://en.wikipedia.org/wiki/Manilahttps://en.wikipedia.org/wiki/Belgradehttps://en.wikipedia.org/wiki/Cartagena,_Colombiahttps://en.wikipedia.org/wiki/Johannesburghttps://en.wikipedia.org/wiki/Bangkokhttps://en.wikipedia.org/wiki/S%C3%A3o_Paulohttps://en.wikipedia.org/wiki/Accrahttps://en.wikipedia.org/wiki/Dohahttps://en.wikipedia.org/wiki/Genevahttps://en.wikipedia.org/wiki/Switzerlandhttps://en.wikipedia.org/wiki/United_Nations_Development_Grouphttps://en.wikipedia.org/wiki/United_Nations_Development_Grouphttps://en.wikipedia.org/wiki/United_Nations_Conference_on_Trade_and_Development#cite_note-2


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UNIT-II Law re"ulatin" Unfair Trade Practice

5.4 egal Regime of 3nfair Trade practices and of Intellectual Property.Unfair Trade Practice In India

The 1onstitution of India, in its essay in building up a ust society, has mandated the *tate to direct its policy

towards securing that end. rticles 6> and 6? of the 1onstitution of India, which are part of the :irective

Principles of *tate Policy, mandate the state to direct its policy towards securing# that the ownership and

control of material resources of the community are so distributed as to best sub serve the common good andthat the operation of the economic system does not result in concentration of wealth and means of

production to the common detriment.

ccordingly, after independence, the Indian 2overnment assumed increased responsibility for the overall

development of the country. 2overnment policies were framed with the aim of achieving a socialistic pattern

of society that promoted e!uitable distribution of wealth and economic power. Dowever, even as the

economy grew over the years after independence, there was little evidence of the intended tric$le/down.

1oncerned with this, the 2overnment appointed a 1ommittee on :istribution of Income and evels of

iving (9ahalanobis 1ommittee) in %ctober 4?


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V distribution of false or misleading information to consumers, including the distribution of information

lac$ing a reasonable basis, related to the price, character, method or place of production, properties, and

suitability for use, or !uality of goods false or misleading comparison of goods in the process of

advertising

V fraudulent use of another's trade mar$, firm name, or product labelling or pac$aging

V unauthori+ed receipt, use or dissemination of confidential scientific, technical, production, business or

trade information.

The dictionary meaning of Junfair trade practice' is# a trade practice which, for the purpose of promoting the

sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or

deceptive.

2% efinition of Unfair Trade Practice Under Consuer Protection ct, $@8

*ection 5(4) (r) of 1onsumer Protection ct, 4?>< also defines the term Junfair trade practice'. It reads#

-unfair trade practice- means a trade practice which, for the purpose of promoting the sale, use or supply of

any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice

including any of the following practices, namelyW

(4) the practice of ma$ing any statement, whether orally or in writing or by visible representation which,W

(i) falsely represents that the goods are of a particular standard, !uality, !uantity, grade, composition, style or

model

(ii) falsely represents that the services are of a particular standard, !uality or grade

(iii) falsely represents any re/built, second/hand, renovated, reconditioned or old goods as new goods

(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accesso/

ries, uses or benefits which such goods or services do not have

(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or

supplier does not have

(vi) ma$es a false or misleading representation concerning the need for, or the usefulness of, any goods or

services

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product

or of any goods that is not based on an ade!uate or proper test thereof

Provided that where a defence is raised to the effect that such warranty or guarantee is based on ade!uate or

proper test, the burden of proof of such defence shall lie on the person raising such defence

(viii) ma$es to the public a representation in a form that purports to beW

(i) a warranty or guarantee of a product or of any goods or services or

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(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service

until it has achieved a specified result, if such purported warranty or guarantee or promise is materially

misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out

(ix) materially misleads the public concerning the price at which a product or li$e products or goods or

services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price

shall be deemed to refer to the price at which the product or goods or services has or have been sold by

sellers or provided by suppliers generally in the relevant mar$et unless it is clearly specified to be the price

at which the product has been sold or services have been provided by the person by whom or on whose

behalf the representation is made

(x) gives false or misleading facts disparaging the goods, services or trade of another person.

Kxplanation. / Gor the purposes of clause (4), a statement that isW

(a) expressed on an article offered or displayed for sale, or on its wrapper or container or

(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale,

or on anything on which the article is mounted for display or sale or

(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever

made available to a member of the public,

shall be deemed to be a statement made to the public by, and only by, the person who had caused the

statement to be so expressed, made or contained

(5) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or

supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the

bargain price, or for a period that is, and in !uantities that are, reasonable, having regard to the nature of the

mar$et in which the business is carried on, the nature and si+e of business, and the nature of the

advertisement.

Kxplanation .WGor the purpose of clause (5), -bargaining price- meansW

(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or

otherwise, or

(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a

bargain price having regard to the prices at which the product advertised or li$e products are ordinarily sold

(6) permitsW

(a) the offering of gifts, pri+es or other items with the intention of not providing them as offered or creating

impression that something is being given or offered free of charge when it is fully or partly covered by the

amount charged in the transaction as a whole

(b) the conduct of any contest, lottery, game of chance or s$ill, for the purpose of promoting, directly or

indirectly, the sale, use or supply of any product or any business interest


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(6) withholding from the participants of any scheme offering gifts, pri+es or other items free of charge, on

its closure the information about final results of the scheme.

Kxplanation W Gor the purposes of this sub/clause, the participants of a scheme shall be deemed to have

been informed of the final results of the scheme where such results are within a reasonable time, published,

prominently in the same newspapers in which the scheme was originally advertised

(7) permits the sale or supply of goods intended to be used, or are of a $ind li$ely to be used, by consumers,

$nowing or having reason to believe that the goods do not comply with the standards prescribed by

competent authority relating to performance, composition, contents, design, constructions, finishing or

pac$aging as are necessary to prevent or reduce the ris$ of inury to the person using the goods

(;) permits the hoarding or destruction of goods, or refuses to sell the goods or to ma$e them available for

sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended

to raise, the cost of those or other similar goods or services.

(< is inclusive in

nature and is both general and specific and was substituted in 4??6 w.e.f. 4> une. The inclusive and general

nature of the definition ma$es the1onsumer Protection ct, 4?>< self sufficient and complete in itself.

The specific part of the definition is inspired by *ec. 6


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impede the free movement of goods between the 9ember *tates, harmoni+ation or a single patent systemwas bound to be urged.X This is not meant to detract from the impressive plan for a single patent system

proposed by representatives of the six member countries, but merely emphasi+es that it was to be expectedinasmuch as the Treaty of Rome designates free competitionWmuch as the 3nited *tates did in an earlier dayWas the principal regulator of the economic system.HTo ma$e competition wor$ re!uires that restrictive business practices be controlled. It was only natural for the founders of the 1ommunity to consider the effect that national patent systems in the 1ommunity wouldhave on the free flow of goods and the rate of technological progress and in what way these diverse,national systems would have to be controlled, harmoni+ed, or otherwise coalesced to promote rather thanimpede the underlying economic policies of the 1ommunity.8hile the push toward uniform patent systems or a single system in the Kuropean 1ommunity was implicitin the concept of freeing commerce between the 9ember *tates, this does not mean that other forcesW having starting points independent of the KK1 movementW have not also encouraged the 9ember *tates todraft a blueprint for a Kuropean patent system promptly. >Gor many years, plans have been proposed and debated which loo$ed toward a regional or supranational

patent system in Kurope. *tarting as early as 4?@?, a single world/wide patent was suggested. In 4?4?, proposals were revived for a single patent to cover the 0ritish 1ommonwealth. In 4?5@, an arrangement for an international patent was actually drafted in Paris, although it never went into operation. :uring 8orld

8ar II, a number of detailed proposals were published in 2ermany, and, in the post/8orld 8ar II years, proposals for the creation of a single Kuropean patent office were made. 9ore recently, the 1ouncil of Kurope attempted to devise a Kuropean patent system but abandoned the attempt in favor of efforts atharmoni+ation.-side from the need to eliminate conflicts between the various national patent laws so that they will notdistort competition in the economic and political union envisaged by the Treaty of Rome, and the academicinterest in supranational systems, the simple !uestion of economics has also acted as an accelerating catalystfor the proposal of a common patent system in the Kuropean 1ommunity.The present 3nited *tates 1ommissioner of Patents and his predecessor have spo$en on numerous occasionsabout the difficulties of running the 3nited *tates examination system efficiently.- The spectacular increasein the volume and complexity of technical information that has to be classified, stored, and ultimately

retrieved in order to determine properly the novelty of an invention, and the continuing difficulty of obtaining !ualified people to serve as examiners, training them, and then $eeping them are well/$nown. 45Kven assuming sufficient numbers of technically trained persons are available to act as patent examiners andthat attractive enough salaries are offered to divert them from industry, in the long run even this may not beenough if the volume and complexity of technology continue to increase so rapidly.-These problems are not uni!ue to the 3nited *tates patent system. The 2ermans and the :utch, who havehad two of the best examining systems in the world, have been finding it increasingly difficult to stay aheadof the tidal wave. s examining offices encounter these obstacles, they loo$ for ways to reduce duplication,increase efficiency and, in many cases, cut out unnecessary operations. There is much tal$ in international

patent circles, at the present time, of cooperation between patent offices in searching, evaluation, andinformation retrieval. %ur own Patent %ffice is interested in finding ways to avoid examining applications

filed for defensive protection only, and a Presidential 1ommission to study the patent system seems certainto be appointed in 4?


26/73

as 3nited *tates patents have effect in all fifty states. The Kuropean patent will be subect only to the provisions of the new :raft. 9oreover, it will be issued by a Kuropean Patent %ffice and certain legalaspects of the patent grant will be determined by an independent or supranational patent court. The officiallanguages will be Knglish, Grench and 2erman.-The Kuropean Patent %ffice will be an administration office common to all the contracting *tates and willcontain examining divisions, a board of appeal for initial appellate review, and revocation boards toadudicate !uestions of validity referred to it by national courts of the contracting *tates. This office willalso have urisdiction over compulsory licensing.5>The proposed Kuropean patent system is characteri+ed by a deferred examination system which represents acompromise between the full examination system of the 2ermans and the registration system of the Grench.The granting procedure will comprise two stages# the first stage will terminate with the grant of a

provisional patent, and the second stage with confirmation of a final Kuropean patent, or a final refusal toconfirm.The first stage will commence with the filing of the Kuropean application.- The office will examine theapplication to see if it meets all the formalities as to patentable subect matter, completeness of specificationand drawings, etc.- If these are satisfied, a novelty report will be re!uested from the International PatentsInstitute at The Dague.-The novelty report will thereafter be sent to the applicant. De is given a final chance to revise his claims in

view of the prior art discovered. The provisional patent will then be granted and published, along with thenovelty report. This phase may ta$e up to 4> months.-

C!NCLU1I!N

The future of this common patent system is uncertain. *ince publication of the :raft for comment in late4?


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5.6 The Indian positionUnfair Trade Practice In India

The 1onstitution of India, in its essay in building up a ust society, has mandated the *tate to direct its policy

towards securing that end. rticles 6> and 6? of the 1onstitution of India, which are part of the :irective

Principles of *tate Policy, mandate the state to direct its policy towards securing# that the ownership and

control of material resources of the community are so distributed as to best sub serve the common good and

that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment.

ccordingly, after independence, the Indian 2overnment assumed increased responsibility for the overall

development of the country. 2overnment policies were framed with the aim of achieving a socialistic pattern

of society that promoted e!uitable distribution of wealth and economic power. Dowever, even as the

economy grew over the years after independence, there was little evidence of the intended tric$le/down.

1oncerned with this, the 2overnment appointed a 1ommittee on :istribution of Income and evels of

iving (9ahalanobis 1ommittee) in %ctober 4?


28/73

lac$ing a reasonable basis, related to the price, character, method or place of production, properties, and

suitability for use, or !uality of goods false or misleading comparison of goods in the process of

advertising

V fraudulent use of another's trade mar$, firm name, or product labelling or pac$aging

V unauthori+ed receipt, use or dissemination of confidential scientific, technical, production, business or

trade information.

The dictionary meaning of Junfair trade practice' is# a trade practice which, for the purpose of promoting the

sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or

deceptive.

2% efinition of Unfair Trade Practice Under Consuer Protection ct, $@8

*ection 5(4) (r) of 1onsumer Protection ct, 4?>< also defines the term Junfair trade practice'. It reads#

-unfair trade practice- means a trade practice which, for the purpose of promoting the sale, use or supply ofany goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice

including any of the following practices, namelyW

(4) the practice of ma$ing any statement, whether orally or in writing or by visible representation which,W

(i) falsely represents that the goods are of a particular standard, !uality, !uantity, grade, composition, style or

model

(ii) falsely represents that the services are of a particular standard, !uality or grade

(iii) falsely represents any re/built, second/hand, renovated, reconditioned or old goods as new goods

(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accesso/

ries, uses or benefits which such goods or services do not have

(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or

supplier does not have

(vi) ma$es a false or misleading representation concerning the need for, or the usefulness of, any goods orservices

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product

or of any goods that is not based on an ade!uate or proper test thereof

Provided that where a defence is raised to the effect that such warranty or guarantee is based on ade!uate or

proper test, the burden of proof of such defence shall lie on the person raising such defence

(viii) ma$es to the public a representation in a form that purports to beW

(i) a warranty or guarantee of a product or of any goods or services or

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(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service

until it has achieved a specified result, if such purported warranty or guarantee or promise is materially

misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out

(ix) materially misleads the public concerning the price at which a product or li$e products or goods or

services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price

shall be deemed to refer to the price at which the product or goods or services has or have been sold by

sellers or provided by suppliers generally in the relevant mar$et unless it is clearly specified to be the price

at which the product has been sold or services have been provided by the person by whom or on whose

behalf the representation is made

(x) gives false or misleading facts disparaging the goods, services or trade of another person.

Kxplanation. / Gor the purposes of clause (4), a statement that isW

(a) expressed on an article offered or displayed for sale, or on its wrapper or container or

(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale,

or on anything on which the article is mounted for display or sale or

(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever

made available to a member of the public,

shall be deemed to be a statement made to the public by, and only by, the person who had caused the

statement to be so expressed, made or contained

(5) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or

supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the

bargain price, or for a period that is, and in !uantities that are, reasonable, having regard to the nature of the

mar$et in which the business is carried on, the nature and si+e of business, and the nature of the

advertisement.

Kxplanation .WGor the purpose of clause (5), -bargaining price- meansW

(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or

otherwise, or

(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a

bargain price having regard to the prices at which the product advertised or li$e products are ordinarily sold

(6) permitsW

(a) the offering of gifts, pri+es or other items with the intention of not providing them as offered or creating

impression that something is being given or offered free of charge when it is fully or partly covered by the

amount charged in the transaction as a whole

(b) the conduct of any contest, lottery, game of chance or s$ill, for the purpose of promoting, directly or

indirectly, the sale, use or supply of any product or any business interest


30/73

(6) withholding from the participants of any scheme offering gifts, pri+es or other items free of charge, on

its closure the information about final results of the scheme.

Kxplanation W Gor the purposes of this sub/clause, the participants of a scheme shall be deemed to have

been informed of the final results of the scheme where such results are within a reasonable time, published,

prominently in the same newspapers in which the scheme was originally advertised

(7) permits the sale or supply of goods intended to be used, or are of a $ind li$ely to be used, by consumers,

$nowing or having reason to believe that the goods do not comply with the standards prescribed by

competent authority relating to performance, composition, contents, design, constructions, finishing or

pac$aging as are necessary to prevent or reduce the ris$ of inury to the person using the goods

(;) permits the hoarding or destruction of goods, or refuses to sell the goods or to ma$e them available for

sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended

to raise, the cost of those or other similar goods or services.

(< is inclusive innature and is both general and specific and was substituted in 4??6 w.e.f. 4> une. The inclusive and general

nature of the definition ma$es the1onsumer Protection ct, 4?>< self sufficient and complete in itself.

The specific part of the definition is inspired by *ec. 6


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5.7 Position in 3.*..


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UNIT-III Law relatin" to plant and Biotec'nolo"y patents

4%$ Nature and types of Biotec'nolo"y patents

3iolo"ical patent is a patent on an invention in the field of biology that by law allows the patent holder toexclude others from ma$ing, using, selling, or importing the protected invention for a limited period of time.The scope and reach of biological patents vary among urisdictions, O4 and may include biological technologyand products, genetically modified organisms and genetic material. The applicability of patents to substancesand processes wholly or partially natural in origin is a subect of debate. O4 Patents and !iotechnolo"#

The patent system# supposed to promote scientific progress and technological development by providingincentives for inventors, investors, and entrepreneurs.

The government grants inventors a private right, i.e. ownership of the invention for 5@Y years, in exchangefor a public good, i.e. their disclosure of information about their invention in the patent application.

In theory, granting inventors a limited monopoly on their inventions provides them with an attractivealternative to trade secrecy and encourages the dissemination of scientific and technical information.

Yless for certain $inds of patents (e.g. new drugs)

!io$tech Terminolo"#

:C is a double/stranded helix composed of complementary nucleic acid base/pairs# adenine () pairs withthymine (T), and cytosine (1) pairs with guanine (2). :C consists of se!uences of nucleic acids, such as1TT221. Proteins are composed of amino acids, which can fold to ma$e complex structures (various

tissues which form organs ,etc).Z It ta$es three nucleic acid bases (or codon) to code for a single aminoacid.

EgeneF can be defined as the basic unit of heredity it carries the information re!uired to ma$e one or more proteins. In human beings, genes include the base/pairs re!uired to ma$e a protein but not the regulatoryse!uences. %nly a small percentage of human :C, perhaps less than ;N, consists of genes. The humangenome includes about 6;,@@@ genes, which code for about 4@@,@@@ proteins. The rest of the genomeconsists of regulatory se!uences as well as other :C base/pairs that have no apparent function, which arealso $nown as Eun$ :C.F

T'e U1PT! re"ards N seDuences as c'eicals siilar to ot'er isolated and purified copounds ,such as digitalis (a heart medication found in the foxglove plant), salicylic acid (an anti/inflammatorymedication found in the white willow plant). /he 89/ has issued patents on isolated and purified genesor isolated and purified 5+ se-uences, but it has not issued patents on natural occurring genes or 5+

se-uences. gene patent is a type of :C patent# it is a patent on an isolated and purified :C se!uencethat codes for a protein.

%ne of the $ey tenets of 3.*. patent law is that one can patent products of human ingenuity but not productsof nature. n isolated and purified gene (or :C se!uence) is a product of human ingenuity because it issomething that does not exist in nature. ny patent that would give the patent holder control over productsof nature would be unlawful.

nother important tenet of patent law is that patents pertain to applications, not ideas or information. Gor example, one cannot patent a computer algorithm, since this is an abstract idea. Dowever, one might be ableto patent a practical application of the algorithm, such as a method for controlling a robot. Thus, patents ongenetic information are illegal, although patents on isolated are purified genes or :C se!uences are legal.

https://en.wikipedia.org/wiki/Patenthttps://en.wikipedia.org/wiki/Patenthttps://en.wikipedia.org/wiki/Inventionhttps://en.wikipedia.org/wiki/Biologyhttps://en.wikipedia.org/wiki/Term_of_patenthttps://en.wikipedia.org/wiki/Term_of_patenthttps://en.wikipedia.org/wiki/Term_of_patenthttps://en.wikipedia.org/wiki/Biological_patent#cite_note-GEN-1https://en.wikipedia.org/wiki/Genetically_modified_organismshttps://en.wikipedia.org/wiki/Genetic_materialhttps://en.wikipedia.org/wiki/Biological_patent#cite_note-GEN-1https://en.wikipedia.org/wiki/Patenthttps://en.wikipedia.org/wiki/Inventionhttps://en.wikipedia.org/wiki/Biologyhttps://en.wikipedia.org/wiki/Term_of_patenthttps://en.wikipedia.org/wiki/Biological_patent#cite_note-GEN-1https://en.wikipedia.org/wiki/Genetically_modified_organismshttps://en.wikipedia.org/wiki/Genetic_materialhttps://en.wikipedia.org/wiki/Biological_patent#cite_note-GEN-1


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Biotec'nolo"y# the materials and methods related to genetic engineering that have been developed since thediscovery of recombinant :C techni!ues in the 4?=@s, including cloning, gene transfer, geneticmanipulation, and other methods and materials used to create genetically modified organisms, developgenetic therapies, or bioengineer pharmaceutical products, such as synthetic proteins or hormones.

Two Types of Patents# patents on compositions of matter, articles of manufacture, and machines (or materials), also $nown as product patents and patents on methods, procedures and techni!ues (or methods), also $nown as process patents%

In biotechnology, product patents include patents on biological materials, such as :C, RC, proteins,hormones, cell lines, organisms, engineered tissues, and artificial body parts. Patents on processes in

biotechnology would include patents on methods for cloning, isolating, se!uencing, and manipulating :C,RC, or proteins. Gor instance, one of the first and most important patents in biotechnology was the 1ohen/0oyer patent on techni!ues for recombining :C in bacteria. 1ompanies fre!uently try to obtain product

patents as well as process patents in order to maximi+e their intellectual property protection# while the patent

would help protect the product, the process patent could protect various methods for ma$ing the product.

Potential Downsides to !iotech patents (and patents "enerall#)

Pro%lem &1' The patent thicet*

If someone owns a patent on an invention, then another person cannot ma$e, use or commerciali+e thatinvention without permission from the patent holder.

patent holder could allow another person or organi+ation to use, ma$e, or commerciali+e his invention bygranting that person or organi+ation a license in exchange for a fee or percentage of royalties. *n any

particular industry, a person deeloping a new product or serice may need to obtain licenses from many

different patent holders. Gor example, if a company is developing a new personal computing device thatcontains patented parts, such as chips, viewing screens, or $eyboards, that company will need to obtainlicenses in order to avoid potential patent infringement lawsuits. Researchers and companies might find itvery difficult to negotiate the do+ens or even hundreds of licenses that they might re!uire to develop a new

product.

1onsider the potential licensing problems one might face in developing a genetic test for hereditary colon

cancer. Perhaps as many as a do+en different genes are thought to play a role in hereditary colon cancer,and each of these genes could be associated many variations of mutated alleles. Kach of these differentalleles could code for types of RC and proteins. If the test is designed to test for genes or gene productsthat are associated with colon cancer, it might need to test for literally thousands of different variations of :C, RC, and proteins. Cow suppose that over two/do+en companies own patents on various parts(:C, RC, or proteins) that would be used in performing this test. *omeone developing this test mightthen need to negotiate over two/do+en different licenses to avoid patent infringement.

Pro%lem &2' +ef,sal to "rant licenses

The second problem has to do with the refusal of some patent holders to grant licenses. 1ompanies mightrefuse to grant licenses in order to gain an edge over their competitors. The 3.*., unli$e some Kuropeancountries, does not have laws that re!uire licensing. In the 3.*., licensing is optional, not compulsory. Thus,under 3.*. law a company may refuse to grant licenses in order to gain a competitive advantage over other companies. The company could also refuse to ma$e, use, commerciali+e the invention if it so desires. If the


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company owns a piece of EupstreamF technology, it can therefore effectively bloc$ many EdownstreamFinventions, if it refuses to license that technology.Gor example, if one company owned a patent on an important gene in biotechnology and biomedicine, suchas the p;6 tumor suppressor gene, and the company did not license other individuals or companies to use or commerciali+e that gene, then it could effectively bloc$ many downstream inventions from that woulddepend on that $ey gene.

Pro%lem &-' ./cessive 0icensin" ees

Third, licensing fees could impose a heavy toll that could deter or prevent research and innovation.1ompanies that hold patents on upstream patents might issue licenses only if they would be granted a

percentage of profits from downstream products. lthough downstream inventors have no legal obligationto share their profits with upstream patent holders, upstream patent holders may try to grab some of these

profits by granting Ereach throughF or Estac$ingF licenses. reach through license is simply a license thatattempts to control not only the use of the invention but also commercial developments from it.

istorical


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Patent +eform Ideas

There are three basic precautionary responses society can ma$e to the threat to discovery and innovation posed by patents in biotechnology#

(a) ban some types of patents, such as patents on :C(b) maintain the status !uo or(c) develop policies to minimi+e the threats posed by biotechnology patents.

1ase gainst %ption (a)# it would be an overreaction to the threats posed by patents. If society always too$ steps to ban patents that could pose a threat to the progress of science and technology, very soon there would

be no more patents left, since every patent has potential ris$s as well as potential benefits. %ption (a) wouldnot be consistent with similar actions because society allows patents in other areas of science, technology,and industry, such as electronics. It would be inconsistent to treat the biotechnology industry differentlyfrom the electronics industry. Ginally, option (a) would not represent a careful balancing of benefits andris$s because it would sacrifice important benefits of patenting, i.e. incentives from for inventors and

entrepreneurs, in order to avoid potential harms.

1ase gainst %ption (b)# it would not be proportional to the level of danger pose by biotechnology patentsand it would not reflect a careful balancing of benefits and ris$s. 3nli$e option (a), option (b) would be anunder/reaction to the threat posed by patents. %ption (b) would not reflect a careful examination of the

benefits and ris$s biotechnology patents because many of these patents do pose some threats to biotechnology and biomedicine that need to be addressed.

Ideas for %ption (c)#

4. Raise the bar on the various conditions for awarding patents in biotechnology, such as novelty, non/obviousness, utility, or the enabling description. This would decrease the number of patents rewarded. Itmay also increase the amount of wor$ re!uired to defend a patent application, which will increase the legalcosts associated with patenting. Dowever, raising the bar too high could have a negative effect in researchand development in biotechnology by reducing the incentives for researchers and companies.

5. Restrict the scope of patents on materials and methods in biotechnology in order to allow competitors todevelop Ewor$/aroundF inventions, i.e. new inventions or improvements on existing inventions. patentexaminer or a court may reduce the scope of patent claims that are excessively broad in order comply withlegal re!uirements and protect public interests. Dowever, if the scope of a patent is too narrow, the patentholder may not be able to obtain an ade!uate return for his investment. Thus, overly restrictive limits on thescope of patents can also reduce incentives and therefore deter discovery and innovation. *ince there aresome legal and practical limits to restricting the scope of patents, this proposed solution also does notade!uately address potential licensing problems.

6. Reinforce, clarify, and legislate the research exemption for researchers in biotechnology and biomedicine.In the 3.*., the research exemption is a rarely used defense to patent infringement that allows academicresearchers to use or ma$e patented inventions without the permission of the patent holder. Dowever, as itcurrently stands, the research exemption applies only to research underta$en for EphilosophicalF or EacademicF purposes with no prospect of commerciali+ation.

7. 3se antitrust laws to respond to anti/competitive practices in biotechnology and biomedicine. *ince a patent explicitly grants a patent holder a monopoly on an invention for a limited time period, one does notnormally thin$ that antitrust laws would have any bearing on patents. Dowever, 3.*. antitrust laws canapply to situations where patent holders refuse to deal with competitors and collude to fix prices. Gor


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example, if a company attempted to corner the mar$et on genetic tests and refused to license its tests to other companies or organi+ations, this might be a situation where antitrust laws might apply.

;. 3se compulsory licensing laws to prevent patent holders from engaging in problematic licensing practices. The 3.*., unli$e some Kuropean countries, has no compulsory licensing provision in its patentlaws. 3nder 3.*. law, it is perfectly legal to patent an invention and then $eep it on the shelf for the entireduration of the patent. In countries that have compulsory licensing, the inventor must ma$e, use, or commerciali+e his invention or license others to do so.


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4%2 Patent oer new fors of life* T&IPs o3li"ation


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4%4 Plant patentin", protection plant arieties

P+T II' INT.+NTION0 IP+ +..3.NT4 +.U0TIN P0NT V+I.TI.4 ND P0NT

!+..D.+45 +I6T4

Introduction and overviewThis section identifies and discusses the provisions of three different international IPR agreements that

protect plant varieties and plant breeders' rights.

The two maor treaty systems that regulate these issues are the agreements established under the auspices of

the 8nion internationale pour la protection des obtentions gtales(-3P%Q-), and the TRIPs greement

included within the family of treaties administered by the 8orld Trade %rgani+ation (-8T%-). (see para.

4.6.;.5 above) These two treaty systems each contain a comprehensive set of rules for their members

regarding IPRs over plant varieties.

In short, the 3P%Q treaties adopt a sui generis system of protection (that is, a system that is uni!ue, or of its

own $ind) especially tailored to the needs of plant breeders. The TRIPs greement re!uires 8T% 9embers

to protect new plant varieties using patent rights, a sui generis system or some combination thereof. 0ecause

TRIPs provides states with this flexibility and because the treaty has an uncertain relationship to the

previously adopted 3P%Q conventions, national governments face a wide array of options in choosing the

intellectual property regime applicable to plant varieties. This section of the study outlines the re!uirements

imposed by these two treaty systems, and Part III of the study then identifies and analyses these options.

T'e UP!= cts

The first 3P%Q ct was drafted in 4? and 4??4.

s of uly 5@@7, ;; states were parties to 3P%Q / 5? to the 4?=> ct, 57 to the 4??4 ct and 5 to the 4?=5

ct. (*tates Parties to the 3P%Q, *tatus on 6@ une 5@@7). s a result, this study will focus on the two most

recent 3P%Q cts. 9any of the accessions to these cts are !uite recent, with a number of developing states

and countries in transition to a mar$et economy acceding in the 4??@s. The 4??4 ct entered into force on

57 pril 4??> and on that same date the 4?=> ct was closed to future accessions except by a few states

already in the process of adhering to it.

s explained in section 4.6.4 above, countries generally give domestic effect to the 3P%Q ct to which they

are a party in one of two ways. In -automatic incorporation- states, courts and administrative agenciesdirectly apply and enforce the ct, although implementing legislation is often needed to authori+e

administrative agencies to process applications to protect new plant varieties. In -legislative incorporation-

states, by contrast, the 3P%Q ct does not become enforceable in domestic law until the state enacts a

national plant variety protection law that conforms to the ct's re!uirements.

T'e T&IPs "reeent%

lthough the 3P%Q cts have provided IPR protection for plant varieties for more than forty years, their

significance has recently been overshadowed by a different intellectual property treaty, the greement on

Trade/Related spects of Intellectual Property Rights (-TRIPs- or the -TRIPs greement-). dopted in

4??7 as a treaty administered by the 8T%, TRIPs is the first and only IPR treaty that see$s to establish

universal, minimum standards of protection across the maor fields of intellectual property, including

patents, copyrights, trademar$s, industrial designs, integrated circuits and trade secrets. lthough the TRIPs

greement devotes only minimal attention to plant breeders' rights or plant variety protection and does not


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even mention the 3P%Q cts, its adoption has done more to encourage the legal protection of plant varieties

than any other international agreement.

T&IPs as a spur to plant ariety protection%

TRIPs' influence on plant variety protection stems from the following sources# (4) its lin$ to other

international trade agreements (5) its widespread adherence by states in both the industriali+ed and

developing world (6) its novel enforcement, review and dispute settlement provisions (7) the re!uirement

in TRIPs article 5=.6(b) that its signatories must provide protection for plant varieties -either by patents or by an effective sui generis system or by any combination thereof- and (;) a formal review of article 5=.6(b)

which was scheduled to be held in 4???. The following paragraphs briefly address each of these five issues.

*ubse!uent sections devote more detailed treatment to the protection of plant varieties with patents and to

the elements necessary to create an -effective sui generis system.-

/he relationship of /> and 4??7. s such, TRIPs was part of a global -pac$age deal.- Industriali+ed nations secured a

commitment from developing nations to provide minimum standards of effective legal protection to

intellectual property products, and in exchange developing nations received a commitment from

industriali+ed countries to open their domestic mar$ets to goods and other products manufactured in the

developing world. (Delfer, 4??>, p. 6==)

=idespread adherence to /


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to enforce their rights against those who infringe them. (art. 74.4) These enforcement provisions include

detailed udicial and administrative remedies, border measures and criminal procedures. (articles 74 to


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authori+ed to review the panel's findings and issue a decision within three months. If either the ppellate

0ody or an unreviewed panel decision concludes that a

LM-502 (Law of Industrial & Intellectual Property-II

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Transcript of LM-502 (Law of Industrial & Intellectual Property-II