An overview to Intellectual Property Rights in India

MS. AVI CHOUDHARY
LECTURER
SARDAR PATEL SUBHARTI INSTITUTE OF LAW
“ Intellectual Property Rights :
An Overview”

What are Intellectual Property Rights?
Intellectual property rights (IPR) have
been defined as ideas, inventions, and
creative expressions based on which
there is a public willingness to bestow
the status of property. IPR provide
certain exclusive rights to the
inventors or creators of that property,
in order to enable them to reap
commercial benefits from their
creative efforts or reputation.

Intellectual property rights are like any other property right. They
allow creators, or owners, of patents, trademarks or copyrighted
works to benefit from their own work or investment in a creation.
These rights are outlined in Article 27 of the Universal Declaration
of Human Rights, which provides for the right to benefit from the
protection of moral and material interests resulting from
authorship of scientific, literary or artistic productions of which
he is the author.

Why promote and protect intellectual property?
There are several compelling reasons;-
First, the progress and well-being of humanity rest on its capacity to
create and invent new works in the areas of technology and culture.
Second, the legal protection of new creations encourages the
commitment of additional resources for further innovation.
Third, the promotion and protection of intellectual property spurs
economic growth, creates new jobs and industries, and enhances the
quality and enjoyment of life.

An efficient and equitable intellectual property system can help all
countries to realize intellectual property’s potential as a catalyst for
economic development and social and cultural well-being. The intellectual
property system helps strike a balance between the interests of innovators
and the public interest, providing an environment in which creativity and
invention can flourish, for the benefit of all.

An overview to Intellectual Property Rights in India

.
The importance of intellectual property was first
recognized in the Paris Convention for the Protection of
Industrial Property (1883) and the Berne Convention for
the Protection of Literary and Artistic Works (1886). Both
treaties are administered by the World Intellectual
Property Organization (WIPO).

.
The Convention establishing the World Intellectual Property
Organization (1967) gives the following list of the subject
matter protected by intellectual property rights:
 Trademarks, service marks, and commercial names and
designations;
 Inventions in all fields of human Endeavour;
 Industrial designs;
 Protection against unfair competition; and
 “All other rights resulting from intellectual activity in the
industrial, scientific, literary or artistic fields.”
 Literary, artistic and scientific works; scientific discoveries;
 Performances of performing artists, phonograms, and
broadcasts;

.
The role and importance of the intellectual property
protection has been formed in the Trade-Related
Intellectual Property Systems (TRIPS) Agreement, with
the establishment of the World Trade Organization
(WTO). At the end of the Uruguay Round of the General
Agreement on Tariffs and Trade (GATT) treaty in 1994, it
was negotiated.

,
The TRIPS Agreement incorporates, in principle, every
form of intellectual property and targets the
complementary and firming standards of protection and
providing for operative enforcement at national as well as
international level. It addresses the applicability of general
GATT principles and the provisions in international
agreements on IP. It also builds standards for scope,
usage, readiness, enforcement, acquisition and
maintenance of Intellectual Property Rights. Moreover, it
addresses related dispute prevention and settlement
mechanisms.

Major International instruments concerning IPR
✓ Paris Convention for the Protection of Industrial
Property (1883)
✓ Berne Convention for the Protection of Literary and
Artistic Works (1886)
✓ Universal copyright convention,1952
✓ WIPO Convention, 1967
✓ Patent Cooperation Treaty (PCT) (1970)
✓ TRIPS (Trade related Intellectual Property Rights)
Agreement, 1994

.
The Development of World Trade Organisation was as a
result of International trade calls and framework of trade
calls for harmonization of several aspects of Indian Law
relating to Intellectual Property Rights. The TRIPS
agreement set minimum standards for protection for IPR
rights and also set a time frame within which countries
were required to make changes in their laws to comply
with the required degree of protection. In view of this,
India has taken action to modify and amend the various IP
Acts in the last few years.

.
The establishment of WTO and India also being signatory
to the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS), many new legislations were
passed for the protection of intellectual property rights to
meet the obligations internationally. These included the
following:

.
 Designs Act, 1911 was changed by the Designs Act, 2000;
 Trade Marks, called the Trade Mark Act, 1999;
 The Copyright Act, 1957 was revised number of times, the
latest is known as Copyright (Amendment) Act, 2012; The
recent amendments made to the Patents Act, 1970 in 2005.
 Other than this, plant varieties and geographical indications
were also enacted in new legislations. These are called
Geographical Indications of Goods (Registration and
Protection) Act, 1999, and Protection of Plant Varieties and
Farmers’ Rights Act, 2001 respectively.
 Semiconductor Integrated Circuit Layout Design (SICLD)
Act, 2000


Patents
A patent is an exclusive right granted for an invention – a
product or process that provides a new way of doing
something, or that offers a new technical solution to a
problem.
A patent provides patent owners with protection for their
inventions. Protection is granted for a limited period,
generally 20 years.

.
Depending on where you wish your patent to be in effect, you
must apply to the appropriate national Patent Office.
Interestingly, in India, there are 4 Patent Offices in total, with
Kolkata being the Head Office and branch Offices located at New
Delhi, Chennai & Mumbai. Applying to any one of the Patent
Office branches is sufficient to begin the process of obtaining an
Indian patent.

.
Not all innovations are “inventions” within the definition
of the Patents Act. The term “invention” is defined under
Section 2(1) (j) of the Patents Act as “a new product or
process involving an inventive step and capable of
industrial application.” Thus, the traditional aspects of
novelty, non-obviousness, and utility have been
specifically included in the definition of the term
“invention”.

Inventions That are Not “Inventions”.
Section 3 & 4 of the Patents Act enlists the innovations
that are not classified as “inventions” within the meaning
of the Act. These may fall within the definition of the
expression “invention,” but the Patents Act expressly
excludes them from the definition. Innovations that are
not inventions within the meaning of the Patents Act, and
accordingly are not patentable in India, include:
(i) a method of agriculture or horticulture;
(ii) a process for the medicinal or other treatment of human
beings and animals

.
(iii) a mere discovery of any new property, or new use for a
known substance, or a mere use of a known process,
machine, or apparatus (unless such known process results
in a new product or employs at least one new reactant);
and
(iv) an invention which is frivolous or which claims
anything obviously contrary to well established natural
laws.

.
By the Second Amendment, the following have been
added to the innovations that are not inventions within the
meaning of the Patents Act:
 A mathematical or business method or a computer
program per se or algorithms;
 A literary, dramatic, musical or artistic work or any other
aesthetic creation whatsoever including cinematographic
works and television productions;
 A mere scheme or rule or method of performing mental
act or method of playing game;

.
 A presentation of information;
 A topography of integrated circuits;
 An invention which, in effect, is traditional knowledge or which
is an aggregation or duplication of known properties of
traditionally known component or components.”
 No patent shall be granted in respect of an invention relating to
atomic energy falling within sub-section (1) of Section 20 of the
Atomic Energy Act, 1962.

What are ‘compulsory licenses’ under the Patents Act?
In simple terms, compulsory licenses are authorizations given to a
third-party by the Government to make, use or sell a particular
product or use a particular process which has been patented,
without the need of the permission of the patent owner.
Under Indian Patents Act, 1970 the provisions of ‘compulsory
license’ are specifically given under Chapter XVI, and the
conditions which need to be fulfilled are given is Sections 84-92
of the said Act.

Section 84
 At any time after the expiration of three years from the
date of the grant of a patent, any person interested may
make an application to the Controller for grant of
compulsory license on patent on any of the following
grounds, namely:—

.
 That the reasonable requirements of the public with
respect to the patented invention have not been satisfied,
or
 That the patented invention is not available to the public
at a reasonably affordable price, or
 That the patented invention is not worked in the territory
of India.

.
As per Section 84, any person who is interested or already
the holder of the license under the Patent can make a
request to the Controller for grant of compulsory license
on expiry of the three years, when the above conditions
are fulfilled.

.
Certain benefits of filing a patent in India are as follows-
 A patent is a form of encouragement for innovations and
inventions. Once an applicant is granted the patent, he or
she becomes the exclusive owner of the invention or the
idea.
 Filing a patent in India is important for a business as the
patent restricts its competitors from copying, selling, or
importing its intellectual property without prior
permission. This way the patent holder can protect his
patent rights in support of the existing laws of the land.

.
 Patents can be sold and licensed like other forms of
property.
 A patent is just like any other intellectual property and can
be transferred by the inventor.
 A patented product is likely to improve brand perception
and potentially enable your business to charge a premium.
 With exclusive patient rights, the owner of the patent
controls the use of the invention for twenty years and
longer.

Utility Models
A utility model is an exclusive right
granted for an invention, which allows
the right holder to prevent others from
commercially using the protected
invention, without his authorization for
a limited period of time. In its basic
definition, which may vary from one
country (where such protection is
available) to another, a utility model is
similar to a patent. In fact, utility
models are sometimes referred to as
“petty patents” or “innovation patents.”

.
Only a small but significant number of countries and
regions provide the option of utility model protection. At
present, India does not have legislation on Utility models.

.
The main differences between utility models and patents
are the following:
The requirements for acquiring a utility model are less
stringent than for patents. While the requirement of
“novelty” is always to be met, that of “inventive step” or
“non-obviousness” may be much lower or absent
altogether. In practice, protection for utility models is
often sought for innovations of a rather incremental
character which may not meet the patentability criteria.

Copyright
 Copyright laws grant authors, artists and other creators
protection for their literary and artistic creations, generally
referred to as “works”.
 Works covered by copyright include, but are not limited
to: novels, poems, plays, reference works, newspapers,
advertisements, computer programs, databases, films,
musical compositions, choreography, paintings, drawings,
photographs, sculpture, architecture, maps and technical
drawings.

.
The act relates to person creativity to, it protects the right
of literary, artistic, musical works and sound recordings
and cinematograph films. For instance, it provides the
copyright to author for his lifetime and 60 years after his
death. It does not required to be qualitative work for being
eligible for the registered under this act, any unique work
with very little in common with any other work can be
considered as eligible for this purpose.

What Rights does Copyright Provide?
A copyright grants protection to the creator and his
representatives for the works and prevents such works from
being copied or reproduced without his/ their consent. The
creator of a work can prohibit or authorize anyone to:
 Reproduce the work in any form, such as print, sound ,video,
etc;
 Use the work for a public performance, such as a play or a
musical work;
 Make copies/recordings of the work, such as via compact
discs, cassettes, etc.;
 Broadcast it in various forms; or
 Translate the same to other languages

Trademarks
A trademark is a distinctive sign that identifies
certain goods or services produced or provided by an
individual or a company. Its origin dates back to
ancient times when craftsmen reproduced their
signatures, or “marks”, on their artistic works or
products of a functional or practical nature.

.
Over the years, these marks have evolved into today’s
system of trademark registration and protection. The
system helps consumers to identify and purchase a
product or service based on whether its specific
characteristics and quality – as indicated by its unique
trademark – meet their needs.

What marks are registrable (including any non-
traditional marks)?
According to the definition of a ‘trademark’, a mark is
registrable if it is capable of being represented graphically
and of distinguishing the goods or services of one party
from those of another. This can include the shape of
goods, their packaging and a colour or combination of
colours.

Duration of Trademark
The registrar on the application made by the proprietor of
the trademark in the prescribed manner within the given
period of time with the adequate payment of fees.
Registration of a trademark shall be of ten years and
renewal of the registered trademark is also for a period of
ten years from the date of expiration of the original
registration or of the last renewal of registration.

.
The registration of a trademark
shall if valid give the exclusive
right to the registered proprietor
to the use of trademarks in
respect of goods and services of
which the trademark is
registered, and also to obtain
relief in respect of the
infringement of the trademark.

Passing off under trademark
Passing off is a common law tort, which can be used
to enforce unregistered trademark rights. The law of
passing off prevents one person from
misrepresenting his goods or services as that of
another.

The three fundamental elements of passing off are
Reputation, Misrepresentation and Damage to goodwill.
These three elements are also known as the CLASSICAL
TRINITY, as restated by the House of Lords in the case
of Reckitt & Colman Ltd V Borden Inc .

.
As per the (Indian) Geographical Indications of Goods
(Registration and Protection) Act, 1999 "Geographical
Indication", in relation to goods, means an indication
which identifies such goods as agricultural goods, natural
goods or manufactured goods as originating, or
manufactured in the territory of a country, or a region or
locality in that territory, where a given quality, reputation
or other characteristic of such goods is essentially
attributable to its geographical origin and in case where
such goods are manufactured goods one of the activities
of either the production or of processing or preparation of
the goods concerned takes place in such territory, region
or locality, as the case may be.

.
By registering a geographical indication in India, the
rights holder can prevent unauthorized use of the
registered geographical indication by others by initiating
infringement action by way of a civil suit or criminal
complaint. Registration of the GIs in India is not
mandatory as an unregistered GI can also be enforced by
initiating an action of passing off against the infringer. It
is, however, advisable to register the GI as the certificate
of registration is prima facie evidence of its validity and
no further proof of the same is required.

.
A Geographical Indication is registered for a period of 10
years and the registration may be renewed from time to
time for a period of 10 years at a time.

Design Act
Design,” is defined in Section 2 (d) of the Designs Act
2000 (the Designs Act) as follows:
Design means only the features of shape, configuration,
pattern, ornament or composition of lines or colors
applied to any article whether in two dimensional or three
dimensional or in 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
trade mark .

What it does not include?
 It does not include any mode of construction or any
trademark as defined under clause (v) of sub-section (1)
of Section 2 of the Trade and Merchandise Marks Act,
1958.
 It does not include ‘property mark’ as defined in section
479 of the Indian Penal Code, 1860.
 It does not include any artistic work as defined in clause
(c) of section 2 of the Copyright Act, 1957.

Duration of the registration of a design
The total time for which a design can be registered is 15
years. Initially, it was 10 years, which could be extended
for another 5 years by paying a fee of Rs. 2000 to the
Controller but it should be done before the expiry of that
10 years period. The proprietor of any design may even
file an application as soon as the design gets registered for
such an extension.

Protection of Plant Varieties and Farmers' Rights Act,
2001
In order to provide for the
establishment of an effective system
for the protection of plant varieties,
the rights of farmers and plant
breeders and to encourage the
development of new varieties of
plants it has been considered
necessary to recognize and to protect
the rights of the farmers in respect of
their contributions made at any time
in conserving, improving and making
available plant genetic resources for
the development of new plant
varieties

The Govt. of India enacted “The Protection of Plant Varieties and
Farmers' Rights (PPV&FR) Act, 2001” adopting sui generis system.
Indian legislation is not only in conformity with International Union
for the Protection of New Varieties of Plants (UPOV), 1978, but also
have sufficient provisions to protect the interests of public sector
breeding institutions and the farmers

Objectives
 To establish an effective system for the protection of plant
varieties, the rights of farmers and plant breeders and to
encourage the development of new varieties of plants.
 To recognize and protect the rights of farmers in respect of their
contributions made at any time in conserving, improving and
making available plant genetic resources for the development of
new plant varieties.

.
 To accelerate agricultural development in the country,
protect plant breeders’ rights; stimulate investment for
research and development both in public & private sector
for the development new of plant varieties.
 Facilitate the growth of seed industry in the country which
will ensure the availability of high quality seeds and
planting material to the farmers.

Breeders’ Rights
 A breeder can be a person or group of persons or a farmer
or group of farmers or any institution which has bred,
evolved or developed any plant variety. And the breeder
(or his successor, his agent or licensee) of the protected
variety will have the right to produce, sell, market,
distribute, export and import such variety.
 Benefit-Sharing: The breeder will be entitled for benefit-
sharing (royalty) under this Act as decided by the PPVFR
Authority

Farmers' Rights
 A farmer who has bred or developed a new variety shall
be entitled for registration and other protection in like
manner as a breeder of a variety under this Act
 A farmer who is engaged in the conservation of genetic
resources of land races and wild relatives of economic
plants and their improvement through selection and
preservation shall be entitled in the prescribed manner for
recognition and reward from the Gene Fund, provided that
material so selected and preserved has been used as
donors of genes in varieties registrable under this Act.

.
A farmer shall be deemed to be entitled to save, use, sow
re-sow, exchange, share or sell his farm produce including
seed of a variety protected under this Act in the same
manner as he was entitled before the coming into force of
this Act, provided that the farmer shall not be entitled to
sell branded (packaged) seed of a variety protected under
this Act.

Semiconductor Integrated Circuit Layout Design (SICLD) Act,
2000
Semiconductor Integrated Circuit
Layout Design(SICLD) Act, 2000, has
come into operation in India w.e.f.
4th September 2000. As per the
provisions of this Act, Registrar
Semiconductor Integrated Circuits
Layout-Design Registry under
the Ministry of Electronics and
Information Technology has been
appointed with its head office at
Electronics Niketan, 6 CGO Complex,
Lodi Road New Delhi-110003.

what are Semiconductor Integrated Circuit
Layout Design
A semiconductor layout design means a layout of
transistors and other circuitry elements and includes lead
wires connecting such elements and expressed in any
manner in semiconductor integrated circuits.

.
Acceptance of Application
Any person who wants to register his layout-design is required to
apply in writing to the Registrar Semiconductor Integrated
Circuits Layout-Design Registry in the concerned territorial
jurisdiction, as per the procedure prescribed in the SICLD Act,
2000.
The Registrar after scrutiny may refuse the application or may
accept it absolutely or with amendments or modifications, as he
may consider necessary.

.
Duration of registration
As per SICLD Act, 2000, the registration of a layout-design is
done only for ten years w.e.f. from the date of filing an
application for registration or from the date of first commercial
exploitation anywhere in India or any country, whichever is
earlier.

.
Infringement of layout-design
Only a registered proprietor of the layout-design or a
registered user can make use the layout design. What will
constitute the infringement of layout design has been
explained in detail in the SICLD Act, 2000.

.
Under the Act any person who infringes the layout design
shall be liable to pay the proprietor of the registered
layout-design, royalty to be determined by negotiation
between registered proprietor and that person or by the
Appellate Board. Such royalty is negotiated keeping in
view the benefit that accrued to the person who has
infringed the layout design as per the SICLD Act, 2000.

An overview to Intellectual Property Rights in India

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