Intellectual Property

Rights

By
Prof. Dipak V. Shirbhate
Lecturer, Department of Production Engineering,
VJTI,Matunga,Mumbai-19
www.vjti.ac.in
Intellectual Property Rights
 Introduction
 The Concept of Intellectual Property
 Different Types of IP
 Rationale behind Intellectual Property
 Balancing the Rights of Owner &
Society
 Enforcement of IPR
 Issues before us regarding IPR
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What is Intellectual Property ?
 Design ?
 Piece of Art ?
 Book ?
 Film ?
 Invention or Formula ?

Or just an idea?

Any thing created by man’s

Ingenuity, Knowledge & Skill
besides labor and capital.

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Concept of Property
 Lay mind : Some material object belonging
to a particular person.
 Concept of Ownership is critical to Concept
of Property.
 Ownership: Right to Possess, Use &
Dispose at the desire of the owner & to
exclude others.
 Society recognition is must.
 Legal Definition : Bundle of rights that the
law confers on a person (s) by virtue of
ownership and possession of an object.
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Types of Property
 Two types : Tangible & Intangible
 Tangible: Land ,Building etc… referred to as
Corporeal Property
 Intangible : Copyright, Idea, Innovation
etc…referred to as Incorporeal Property

Intellectual Property is Incorporeal Property and it

derives its value from ideas.

IP is a dynamic area while corporeal property is a static

one.

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Classification of IP
 IP is generally divided into two categories
a) Industrial Property
b) Copyright

Industrial Property : Rights relating to Inventions,

Industrial Designs , Trade Marks, Geographical
Indication & Appellation of Origin.

Copyright : Rights relating to creation of human mind

in the fields of Literature, Music, Art and Audio-
Visual works (Related Rights & Neighboring Rights)

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Seven types of IP
 TRIPS Agreement of the WTO recognizes seven types of
Intellectual Property Rights

1.Copyright & Related/Neighboring Rights

2.Trade Marks, Trade Names, Service Marks
3.Geographical Indications
4.Industrial Designs
5.Patents
6.Layout Designs of Integrated Circuits
7.Undisclosed Information

TRIPS : Trade Related Aspects Of Intellectual Property Rights

WTO : World Trade Organization

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Copyright
 Copyright is granted for original,
literary musical, artistic or audio-
visual works
 The creations of authors, playwrites,
composers,artists and filmmakers
 It includes rights of reproduction,
communication to the public,
adaptation and translation of work

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continued……….
 Although originality in expression is a
requirement for copyright, the quality
of work is not an issue at all.
 Copyright subsists the work which is
the creation of idea(s);it is not the
idea(s) which is protected by
copyright,but merely the expression
of the idea in the work
Example : Painting/Sunset
Research Paper Subject
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 Trade Marks/Names/Service Marks
 Trade Marks & Service Marks :
Distinctive Symbols of the company
 Trade Names :Name of the enterprise

that individualizes the name of the

company
Both are protected as IP
Trade Mark to be Distinctive not Deceptive
No requirement in law for Quality Standard
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Geographical Indications (GI)
 It is a sign used on goods that have a specific
geographical origin & possesses qualities /reputation
solely attributed to place of origin and is protected as IP
 A GI is different from a Trade Mark
GI – All producers producing in designated place can use
IPR. It also denotes indication of source & appellation
of origin
Trade Mark- Distinguishes Product/Services of enterprise

from others and exclude others from using the

trade mark

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Industrial Design
 The ornamental or aesthetic aspect of
an article
 Serves as a tool for product
differentiation
 Attracts customers by enhanced
visual appeal and become IP to be
protected
 Applied to wide range of products
from industry or handicraft
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Patent
 A Patent is a statutory right granted for a limited
period to an inventor in respect of an invention to
exclude any other person from manufacturing, using
or selling the patented product or from using the
patented process, without due permission.
 Under the TRIPS Agreement of the WTO
inventions in all fields of Technology
Products or Processes are patentable if they meet the
criteria of Novelty, involve an Inventive step and
are capable of Industrial Application

Aim : Rewarding Intellectual Creativity for encouraging economic

and technological development

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Layout Designs-Integrated Circuits
 Layout Designs topography) of integrated circuits is
relatively new area in IP
 Has appeared with computer technology The
programming instructions on a computer chip are
implemented through a circuitry printed on
semiconductor materials. The design of circuitry on
the chip requires great investments of knowledge,
skills and capital and therefore needs to be protected
as IP.
 Protected as IP against copying but improved design
by reverse engineering is regarded as fair.
 Criteria – Original-No Monopoly Right

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Undisclosed Information
 Undisclosed Information gets
recognition as a kind of IP to be
protected under TRIPS
 It virtually restricts honest practices
to protection of trade secrets.

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Rationale behind IPR
 IPRs are based on three premises :
1.Creative activity culminating in IP can be
increased by encouragement but not in
adequate quantity without economic
incentives.
2.Adequate Economic Benefits as just
rewards for creation of IP through grant of
Monopoly Rights even if for limited period.
3.The provision of the Global IP regime to
ensure economic returns and safeguarding
interests of all concerned.
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Balancing the Rights of
Owner & Society

 There can be no absolute rights in IP

because all individual rights are
subject to the recognition of the
rights of other individuals and the
rights of the society.

 Role of State & purpose of Law :

Harmonize conflicting claims and
achieve balance.
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 Protection of Individual Property is
important but it is equally important in a
democratic polity that the State creates
condition and necessary structure for wide
spread access to opportunities
 Balancing responsibility of the State
reflected in the Indian Law
 Private Property is strongly respected and
legally protected, it is no more a
fundamental right
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IP & Constitution of India
 The constitution of India under entry
49 of Union list of matters mentions
about Patents, Inventions, Designs,
Copyright, Trade Marks &
Merchandise;but it makes no specific
reference to IP
However IP as a form of property can
be put under Article 300A dealing
with property and be entitled to a
legal right.
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 Experts have indicated towards the
possible conflicts between IP,
especially the Copyright and the
constitutionally guaranteed freedom
of speech and expression.
 The Hon’ble Courts have zealously
upheld this fundamental
freedom.However such challenge has
not yet been mounted.
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Enforcement of IPR
 India and the TRIPS Agreement : India
has to a large extent complied with its
obligations under TRIPS through a series
of amendments to its existing laws and
through new legislations. However the
TRIPS agreement leaves some room to
deal with various issues at national level
such as definition of an invention,
exception to exclusive rights,
compulsory licenses and others.

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New Legislations/Amendments to
Existing Legislations
1. The Trade Marks Act,1999
2. The Designs Act, 2000
3. The Protection of Plant Varieties and Farmer’s Rights Act,
2001
4. The Geographical Indication of Goods
(Registration & Protection) Act, 1999
6. The Semiconductor Integrated Circuits Layout Designs
Bill, 1999
7. The Patents Act 1970,as amended by Patents
(Amendment) Act, 2002
8. The Copyright Act, 1957 together with International
Copyright Order, 1999
All issues regarding IPR in India are governed by these
legislations

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Issues before Us
 What is a patentable Invention ?
“A new product or process involving
an inventive step and capable of
industrial application”
 What is not patentable ?

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Procedure for Obtaining Patent
 Who can apply ?
A person claiming to be the true and
first inventor of an invention
 Filing a Patent Application:
Only one application is filed for one
invention along with provisional or
complete specification

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The Specification must contain :
 Title, sufficiently indicating the subject matter
 Relevant drawings/graphics
 Full & particular description of invention
 Details of its operation or use and the method by
which it is to be performed
 Disclosure of the best method of performing the
invention
 Claims defining the scope of the invention
substantiated by the disclosure
 Abstract providing technical information
 Declaration as to the inventiorship of the invention

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Search for anticipation by previous
publication and by prior claim
The search requires investigation for

3. Prior Applications
4. Patents Already Granted
5. Already Published or Claimed

Any objection raised by the examiner are to

be removed by applicant within 12 months.
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Acceptance & Advertisement
 Controller of Patents notifies it to the
applicant and also advertises it in the
Official Gazette for public inspection
 From date of advertisement to the
date of sealing the patent, the
applicant enjoys the privileges and
rights as if a patent had been sealed
on the date of advertisement except
the right of infringement.
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Opposition to the grant of Patent
 Notice to Controller within 4 months from the date of
advertisement on following grounds :
2. Wrongfully obtained by the inventor
3. Anticipated in a specification filed for another patent
earlier
4. Publicly known in India before priority date of claim
5. Not an invention within the meaning of the Act
6. The information furnished is false
7. Geographical origin is not disclosed or falsely
disclosed
8. Convention application not filed in India in prescribed
time for the same invention in a convention country

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Grant of Patent

 Where the application for a patent has

been accepted without opposition or
after disposing the opposition, a patent
shall be granted if the applicant makes a
request within 6 months of
advertisement.
 The patent so granted shall be sealed
with the seal of the patent office and the
date shall be entered in the register.
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Rights of Patent
 Right to exploit the patent
 Right to grant license etc
 Right to surrender
 Right to sue for infringement

LIMITATIONS :
 Purposes of Government
 For imparting instructions to pupils
 Medicine or Drug imported by the
Government for its use in hospital, medical
institute, Lab, maintained by or on behalf of
the Government.
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Difficulties Primarily Faced in Creation of IPR in
Academic & Research Institute:
1. Lack of knowledge regarding the
novelty/innovation of a research work persuade
by a scholar with respect to its suitability for
creation of IPR.( Patent Search)

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 2. Absence of systematic planning and
organizing of a research programme in
reference to filing of patent.
- To conceive the part or phases
of any developmental work
justifying its novelty/innovation.

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 3. Absence of knowledge regarding the timely
disclosure of invention to register the right
of inventor- ship/creatorship
4. Lack of idea regarding the type of information,
level of technicality and extent of experience
/data that can be disclosed or made public by
lecturing, publication etc. without harming the
interest of the work with respect to its right for IP.

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 5. Poor knowledge of preparation of technical
and legal write-up of a work to justifying its
suitability to register as IPR prior to the legal
consideration.
6. Non availability of legal staff / cell in most
of the academic institutes to prepare and plead
the case of IPR.

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Immediate measures to be taken :

Activation of the system for Development

of Awareness, Attitude and Culture for
creation of IP

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 The intellectual property thus vests in a
creation of human mind involving
knowledge, labor and skill.
 It is the result of sustained intellectual
application and efforts by
inventors/authors/artists
 Powerful factor of production and wealth
generation
 Significant competitive advantage over
rivals in the trade and industry

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Moser Baer story
Moser Baer Entertainment who was
the leading manufacturers of blank
DVDs and VCD’s recently entered the
market by selling quality DVD in
regional languages at an affordable
price.

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UFO MOVIES INDIA LIMITED

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ADVANTAGES
BENEFITS AUDIENCE NATION

Savings of foreign Exchange in importing

Savings in Print Cost No increase in Ticket costs
film stock
Audience in C and D centers
Wide Release of Film Increase in cinema collections means
will get access to new
increased entertainment tax revenues
releases on day of release
Durability
of Good and uniform viewing Good quality prints shall result in increased
Media experience collection
Access to good quality theatre
Curb on Piracy Curb on piracy will increase cinema
viewing in the early part
collection
of a films life

Promoters Niche Cinema Provides access to newer variety Encourages film production and enchances
of cinema revenue potential

Provider access to newer variety Encourages film production and enchances

Promotes regional of cinema revenue potential
specific films

Encourages producers to make

Lower Break Production of more films will increase cinema
good and meaningful
Even Point collections
cinema

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Eastern Economy edition
Eastern Economy Edition:
This is a type of
International Edition which
is usually printed in black
and white or reduced
color, and may have
slightly lower quality
paper.

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India Patents Yoga Poses From
Western Thefts

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Himalaya: Heritage sells only if
packaged well
The Himalaya Drug
Company, since
1930, has blended
ayurvedic expertise
with modern
medical research
methodology, to
extend the science
of ayurveda to
produce
scientifically
verified herbal
solutions.

Tuesday, August 18, 2009 VJTI,Mumbai-19 42

 THANK YOU

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