IASNOVA
Intellectual Property Rights in India
Intellectual Property Rights are legal rights governing the use of creations of the human mind. The recognition and protection of these rights is of recent origin. Patents, designs and trademarks are considered as industrial property. As per International Convention for the protection of industrial (Paris Convention) the protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations or origin and the repression of unfair competition when copyrights, Geographical indicators, layout Designs and confidential information were included to industrial property, they all become intellectual property.
With the trade related Aspects of Intellectual Property Rights (TRIPS) Agreement of World Trade Organisation (WTO), the intellectual property rights attained the authority to enforce the law internationally.
According to TRIPS, the intellectual property rights are:
1) Copyright and Related Rights
- a) Rights of artists, painters, musicians sculptors, photographers, and authors for copyright in their works;
- b) Rights of computer programmes whether in source or object code for a copyright in their programmes and compilation data;
- c) Rights of performers producers of phonogram’s and broadcasting organizations in respect of fixation on their programmes for copyright in their work.
2) Right of traders in their trade marks.
3) Right of manufacturers & producers on geographical indication in relation to such products and produce.
4) Right of designers for their distinctive design striking to the eye.
5) Patents:
- a) Right of the inventor for patent is his invention.
- b) Rights of plant breeders and farmers.
- c) Rights of biological diversity.
6) Right of computer technologist for their layout design of integrated circuits.
7) Right of businessmen for protection of their undisclosed information on technology and management.
Copyright & Related Rights:
The subject-matter of copyright is the literary, dramatic and musical or artistic work, a cinematograph film and a sound recording. Literary work includes computer programmes, tables and compilations including computer databases.
The object of this right is not the material thing produced, but the form impressed upon it by the maker. The picture, in the abstract sense of the artistic form made by visible by that paint and canvas, belongs to him who made it.
Trade Mark:
Trademark is anything which identifies the origin of the goods or services. It can be a name, symbol, logo, colour, sound etc. Trademark symbolizes the value or goodwill associated with the goods and its specific source. It distinguishes one firm from others. Benefits of trademarks are several-fold:
Patents:
The subject-matter of a patent-right is an invention. He whose skill or labour produces the idea of a new process, instrument or manufacture has that idea as his own in law. He alone is entitled to use it and to draw from it the profit inherent in it.
Geographical Indications:
A geographical indication is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999 has come into force with effect from 15 September 2003.
GIs have been defined under Article 22(1) of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS) Agreement as:
“Indications which identify a good as originating in the territory of a member, or a region or a locality in that territory, where a given quality, reputation or characteristic of the good is essentially attributable to its geographic origin.”
Industrial Designs:
Industrial design means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or both forms, by any industrial process or means whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction and does not include any trademark.
Lay-out Designs of Integrated Circuits:
In the case of layout designs of integrated circuits the property consists in the exclusive right to apply the layout design registered under statute in relation to the class of goods for which it is registered for a prescribed period. The right can also be licensed for use by third party or assign to any person.
Trade Secrets/
Protection of undisclosed Information:
Confidential information and know-how can be protected only so long as the owner is able to keep them secret and takes action against unlawful use of such information by others by an action for breach of confidence or contract.
The rights of intellectual property are created by statute. The invention may relate to a new product or an improvement of an existing product or a new process of manufacturing an existing or a new product. The acquisition of the monopoly of intellectual property, the conditions to be satisfied for acquisition, its duration, the licensing of this monopoly rights or their assignment to others are strictly governed by the statutes.
India, having ratified the final act of Marrakesh and being the member country of WTO has implemented the TRIPS Agreement. India implemented all the provisions of the TRIPS Agreement along with other conventional agreements by enacting the new law or by amending the existing law.
Compulsory Licensing In India
Compulsory licenses are sovereign state authorizations which enable a third party to make, use, or sell a patented product without the consent of the patent holder. Provisions pertaining to compulsory licensing are provided for under both the Indian Patent Act, 1970, as well as the international legal agreement between all the member nations of WTO – the TRIPS. In India, Chapter XVI of the Indian Patent Act, 1970 deals with compulsory licensing while the conditions which need to be fulfilled for the grant of a compulsory license are laid down under Sections 84 and 92 of the Act.
In accordance with Section 84(1) of the Indian Patent Act, 1970, after three years from the grant of a patent, any interested person may make an application for a compulsory license on the grounds that the patented invention:
- Does not satisfy the reasonable requirements of the public;
- Is not available to the public at a reasonably affordable price; and
- Is not worked in the territory of India.
Section 3 (D) of Indian Patent Act, 1970
Section 3(d) of the Indian Patent Act 1970 (as amended in 2005) does not allow patent to be granted to inventions involving new forms of a known substance unless it differs significantly in properties with regard to efficacy.
Thus, the Indian Patent Act does not allow evergreening of patents. This is a cause of concern to the US pharma companies.
