Presentation_1_Introduction_to_IPR.ppt

Intellectual property Rights
 One of the Galaxy in the Universe of
Law..
 Creation of Mind
 A Kind of Property
1
By Hardik Parikh, Asst. Professor
and Fellow in IPR

Classification of Property
Property
An Interest Recognised and protected
by Law
Tangible Intangible
Movable Immovable Goodwill Intellectual
Property
2
and Fellow in IPR

What is Intellectual Property ?
 Intellectual Property Right (IPR) is
commonly defined as the right to
protect the creation of human
mind.
 Intellectual Property Rights are legal
rights governing the use of such
creation.
3
and Fellow in IPR

 Word Intellect has roots in Latin
words intellectus – perception.
 May be termed as a faculty of
knowing and reasoning.
 Measurement of one’s
understanding of persons or things
of events and concepts.
and Fellow in IPR 4

 Basic meaning of Property is
generally, what one has.
 What one possesses to the exclusion
of all others becomes his property.
 That is way, property is known as a
bundle of exclusive rights.
and Fellow in IPR 5

 Thus intellect can be termed as
the source of ideas, the
Intellectual Property becomes
the property over the Ideas.
and Fellow in IPR 6

 Human Being or homo sapiens is
described as a social animal.
 He has a personality of his own,
which remains absent is the
animals.
 Thus, only human beings are
supposed to have the Intellect
and Fellow in IPR 7

 So, intellect is regarded as the
exclusive possession of man against
all the animals, it can be said the
property of a human being in the
sense that it is only they who are
thought of as possessing it.
 In fact, it is the quality, that
distinguishes the man from animal.
and Fellow in IPR 8

 From these all discussion, the
property of the intellect is the
property of the holder of the
intellect i.e. A human being.
 Therefore, Intellectual Property
refers to some particular activity of
human intellect.
and Fellow in IPR 9

 Intellect or Idea – A wide concept.
 The Universe is the expression of
the idea of the Supreme Being.
 Similarly, every object has an idea
behind its existence.
and Fellow in IPR 10

 Everything whether it is material or
abstract in nature, owes its
existence to ideas and hence, to the
faculty of ideas – Intellect.

 Same concept may be discussed with
reference to the theory of Labour.
 The earth and everything on it is
common to all men, yet every man
has his property over two things: His
Person and what he has carved out
of nature for him by his labour and
skill.

 Since, Intellect is an integral part of
one’s personality and one’s intellect
plays an important role in deciding
what sort of labour his body be
engaged into as well as what work
his hands take up.

 So, if Intellectual Labour and
Intellectual Skill are one’s own
property or characteristic, anything
which comes out of an application
of any or all of these is equally one’s
own.

 Therefore, naturally, a person
should have the right to own which
his intellect has produced.
 Thus, it the proprietary right over
the product of one’s own intellect,
which has been termed as one’s
own Intellectual Property Right.

Nature of Intellectual
Property Rights
 This term covers the bundles of
rights such as Patent, Trade Mark,
Industrial Design, Copy Right,
Geographical indications etc.
 Each of them is different in scope,
duration with a different purpose
and effect.
16
and Fellow in IPR

 Intellectual Property is a category of
intangible rights protecting
commercially valuable products of
the human intellect.

 IP refers to those innovations that
results from exercise of the human
intellect and result in new
technologies, new products or new
processes.

 The innovation that is protected by
the Intellectual Property Law is not
merely an Idea but it is an
implementation of the Idea.
 Obviously, the Idea is property of
person but it becomes impossible to
protect it unless it has been
implemented.

Example
 Leonardo Da Vinci’s elegant
drawings of the airplane may not
be qualified for patent protection as
invention.
 Reason is it has not been
manifested in a working model or
reduced to practice so there is no
utility.

 The same drawing, on the other
hands, may have qualification for
Copyright Protection as a purely
aesthetic expression of an idea

 Thus Intellectual Property Rights
include the rights of an inventor in
his invention, an artist or writer in
his creation, and even the rights of
a plant breeders and farmers.

Special Feature of IPR
 Its entitlement is not limited to a
particular physical body
incorporating the rights.
 But it is present in all the actual
and virtual realizations of the IP

Example
 A writer’s IP Rights are not
restricted to the original manuscript
of his work.
 The rights follow each printed and
published copy of the book and any
subsequent reproduction of the
work, authorized or unauthorized.

 Even destruction of a copy or even
of the manuscript does not result in
extinguishing his intellectual
property rights in the work.
 This feature of IP is significantly
different from other forms of
property and rights.

 Considering the special nature of
the IP, we need special laws for
them.
 Even International Trade
Regulations have also been
formulated for the protection of IP
Rights.

Intellectual Property
Contains..
 A bundle of rights including right to..
 Re-produce,
 Distribute
 License
 Sell
 Exploit IP in any other way.

 Moreover, unlike physical goods,
Intellectual Products can not be
contained within any region
especially with the free flow of
information by means of the latest
technologies.

 The value of IP Rights remains only
as long as it is not infringed upon.
 Therefore, there is as much stress
on the substantive rights as on
remedial measures.

 IP Rights are private rights.
 By means of IP, law confers an
interest that is akin to a monopoly,
with the sole purpose of stimulating
innovations and creativity.

 Protection is granted to the right
holders not merely to convey an
exclusive title for the creations but
also includes the right to reproduce,
distribute and gain commercial
returns for their creations.

 State provides a territorial protection
to the IP,
 However, now the rights have
became a commercial commodity
and from the core of trading activities
across the globe, IP has been a global
concept and International as well as
National Provisions are available.

 Intellectual Property is divided into
two Categories:
Industrial Property- Patents,
Designs, Trade Marks
Copyright- Literary and artistic
works, Drawings, Paintings,
Musical works

Why to Promote & Protect
Intellectual Property ?
 The progress and well being of humanity rests
on its capacity to create and invent new works
in the areas of technology and culture.
 The legal protection of new creations
encourages the commitment of additional
resources for further innovation.
 The promotion and protection of IP spurs
economic growth, creates new jobs and
industries, and enhances the quality and
enjoyment of life.
34
and Fellow in IPR

 IPRs generally exclude third party
from exploiting the protected
subject matter without
authorization of the right holder.
 This enables IPR owners or the right
holders to use or disclose their
Intellectual Property without fear of
loosing of control.
35
and Fellow in IPR

What is the role of Intellectual
Property in business?
 The most striking business
development of the past quarter
century has been the conversion to
a knowledge-based and technology-
driven economy.

 Only 25 years ago, the most
valuable assets of most businesses
were real estate, machinery,
inventory and other tangibles,
today the most significant business
assets are often intangible
technology, brand names, and
other intellectual property.

 Many businesses of all types rely
heavily or are based on intellectual
property.
 IP is considered to be a core
component of a business today.

Examples
 Patents are essential to businesses in
the electronics, chemical,
pharmaceutical, biotechnology,
manufacturing.
 This is because patents may be used to
preclude competitors from using new
technology, and they often pose a
strategic barrier to entry or competition
within an industry.

Example
 Trade Marks are crucial to
business which sell goods and
services, particularly packaged
goods and retail services, because
Trade Marks serve to differentiate
the goods and services of one
business from those of others.

Example
 Copyright and related rights are
important for business in the
publishing arts, software, music and
other entertainment, information and
communications industries, including
internet-related industries, because
those rights prevent any copying of
the underlying works.

Example
 Industrial designs are important to
business offering to consumers
goods such as furniture and toys
because the designs protect the
aesthetic aspects of functions
articles.

Example
 Confidential information in all
industries is fundamental to the
protection of proprietary
information such as customer lists,
databases, product formulations
and other technology.

 The importance of intellectual
property in business is reflected in
a number of ways.
 One is the recent development of
TRIPS. Another is the higher profile
intellectual property is taking on
the legislative agendas of many
national governments.

 Many mergers and acquisitions
are really purchases of technology,
brands, content and information.

 In numerous recent multi-billion dollar
deals, the stated motivation of the
purchasers was the acquisition of the
targets’ strong brands, technology and
patent portfolios, or content in the form of
copyright-protected properties.
 Still more recently, the values of Internet
and other technology companies have been
driven by the value of their intellectual
property.

 Thus, in addition to the traditional
requirements of technical excellence,
economic production or performance,
marketing know-how, and financial
strength, today’s corporations also
need to leverage their intellectual
property to maximize shareholders
values

Kinds of Intellectual Property
 Patents
 Trademarks
 Copyrights
 Designs
 Geographical Indications
 Plant Varieties
 Semiconductor Integrated Circuits and Lay
out designs
50
and Fellow in IPR

What is a Patent ?
 Section 2(m): “Patent means a patent for
any invention granted under the Patents
Act.”
 An Exclusive Right granted to a person
who has invented a new and useful article.
 It consist of an exclusive right to
manufacture or use the new article
invented for a limited time.
51
and Fellow in IPR

 After the expiry of that period, any
body can use the invention.
 Government sponsored monopoly.
 Exclusive = Right to exclude others
from using or manufacturing article in
unauthorised way.
52
and Fellow in IPR

What is Invention?
 Section 2(j): “Invention means a
new product or process involving
an inventive step and capable of
industrial application”
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and Fellow in IPR

Basic Criteria for Invention
 New = Novelty
 Inventive Step = Non Obviousness
 Industrial Application = Utility.
54
and Fellow in IPR

What is New Invention?
 Section 2(l): “New Invention means any
invention or technology which has not
been anticipated by publication in any
document or used in the country or
elsewhere in the world before the date
of filing the patent i.e. the subject
matter has not fallen in public domain”
55
and Fellow in IPR

What is Inventive Step?
 Section 2(ja): “Inventive Step means
a feature of an invention that
involves technical advance as
compared to the existing knowledge
or having economic significance or
both and that makes the invention
not obvious to a person skilled in that
art.”
56
and Fellow in IPR

What is Industrial Application?
 Section 2(ac): “Industrial
application in relation to an
invention means that the invention
is capable of being made or used in
an industry.”
57
and Fellow in IPR

The Patents add fuel of interest
to the fire of genius
- Abraham Lincoln
58
and Fellow in IPR

OBJECT of Patents
To gain
commercial
advantage
Encouragement to..
Scientific Research
New technology
Industrial progress
59
and Fellow in IPR

PATENT
Product
Patent
Process
Patent
Food
Medicines
Chemicals
For these three
term of patent was
5 to 7 years.
Now
20 Years
60
and Fellow in IPR

Which Inventions are not
Patentable? – Section 3, 4
 1. Frivolous or claiming anything obviously or
contrary to well established natural laws.
 2. Contrary to Law or morality or injurious to
public health.
 3. Mere Discovery of a scientific principles or
discovery of any living or non living
substances.
 4. Mere discovery of any new form or new
use of known substance
61
and Fellow in IPR

 5. Mere admixture resulting only in
aggregation of substances
 6. Mere arrangement or rearrangement or
duplication of known devices.
 7. A method of agriculture or horticulture
 8. A process of medical, surgical, curative,
diagnostic, therapeutic or other treatment of
human beings or animals
62
and Fellow in IPR

 9. Plants and animals in whole or in any part
including seeds, varieties other than micro
organisms.
 10. A mathematical or business method or a
computer program and algorithms.
 11. A literary, dramatic, musical or artistic
work, sound recording or cinematograph
films.
 12. Mere scheme of rules or method of
performing mental act or game. 63
and Fellow in IPR

 13. A presentation of Information
 14. Topography of Integrated Circuits
 15. An invention which in effect is a
traditional knowledge or duplication of known
properties of traditionally known components
 16. An Invention relating to atomatic energy.
64
and Fellow in IPR

PROCEDURE FOR OBTAINING
PATENT
 Submission of application
 Examination of application
 Advertisement of acceptance of
complete specification
 Opposition to grant of patent to the
applicant
 Hearing of the parties
 Grant and sealing of patent
65
and Fellow in IPR

INFRINGEMENT OF PATENTS
Patent Confers Exclusive right
Make Distribute Sell
WHAT AMOUNTS TO
INFRINGEMENT
Colourable
imitation of
an
invention
Immaterial
variation in
the
invention
Mechanical
Equivalents
Taking
essential
features of the
invention 66
and Fellow in IPR

Reliefs available for infringement
The Reliefs
Injunction Damages Account of profits
67
and Fellow in IPR

Injunction
 An injunction is an order of court
prohibiting someone from doing some
specific act ( To undo some wrong or
injury)
 It is protective and preventing remedy
aimed preventing future wrongs
68
and Fellow in IPR

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