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Intellectual

Property Rights


Delivered By-Deepali Bhagat
Contents
Introduction to IPR
Types of IPR
Patients
What may be patented ?
Who may apply for patent?
Trademarks
Trade secret
Industrial Design

Contents(Continued)
Copyrights
Patent system in India
Emerging Issues in IPR

INTRODUCTION TO IPR
It is the PROPERTY CREATED BY
APPLICATION OF HUMAN MIND
Intangible (non-physical) in nature-
derives value from ideas
There is no uniform definition of IP
In knowledge age, IP is a key to
techno-economic growth



IP EVERYWHERE IN LIFE
Articles of food, furniture, clothing,
textiles, cosmetics, pharmaceuticals,
entertainment gadgets, machinery,
books, etc. are all IP protected.
Domain of IP is ever expanding with
advent of Technology and
Globalization : GI, IC topography are
new additions, TK/Biodiversity are
likely additions

RATIONALE BEHIND IP
The creative activity culminating in IP is
necessary for socio-economic progress
Material incentives and rewards encourage
greater creative activity
IP rights grant monopoly to ensure rewards
The interests of owner and society are
balanced by limiting periods of monopoly with
obligation to disclose and remedies against
abuse of rights
Disclosure brings knowledge in public domain
NATURE OF IPRs
Essentially negative rights to stop others
from copying or counterfeiting
In patents, being first with an invention
pre-empts any right of another making
same invention independently.
In copyrights, the right is diluted as right
is over the form of expression and not
over idea.
IPRs being statutory rights are legally
enforceable.
They are territorial in nature.

TYPES OF IPR

Patents
Trademarks, Trade Names & Services Marks
Trade Secrets
Industrial Designs
Copyrights And Related Rights
Layout-designs of Integrated Circuits
First six are Industrial Property Rights
Patents
PATENT: WHAT I S I T?

It is a limited right granted by the
state to an inventor in respect of an
invention to exclude any other person
from practicing the invention
i.e. manufacturing, using or selling the
patented product or from using the
patented process, without due
permission.

WHAT CAN BE PATENTED?
Inventions in all fields of technology,
whether products or processes, if they
meet the criteria of
Being patentable subject matter;
Novelty;
Non-obviousness (inventive step);
Industrial application (utility).
Conditions of Patentability
Novelty: Invention not known to public
prior to claim by inventor
Inventive Step: Invention would not be
obvious to a person with ordinary skill in
the art
Industrial Application: Invention can be
made or used in any useful, practical
activity as distinct from purely intellectual
or aesthetic one


SOME EXCLUSIONS FROM
PATENTABILITY
Naturally occurring substances/elements;
Diagnostic, therapeutic and surgical methods of
treatment of humans or animals;
Plants and animals other than -organisms;
Essentially biological processes for production of
plants or animals;
Inventions whose use is contrary to public order
or morality.
Ideas, methods for business, playing games,
performing mental acts.



Who may apply for patent?
For ordinary
patent



For patent of
addition

For convention
application
Application
under PCT
Any person , whether a citizen of India
or not claiming to be the true & first
inventor or his assignee or legal
representative ,either alone or jointly
with any other.
The applicant of the original patent to
which the invention is an addition can
only file a patent of addition.

Any person who is the applicant in a
convention country or his assignee.
An applicant for international
application under PCT.

4711 (Cologne)
TRADEMARKS
TRADEMARK, SERVICE MARK,
and TRADE NAME
Distinctive symbols, signs, logos that help
consumer to distinguish between
competing goods or services.
A trade name is the name of an enterprise
which individualizes the enterprise in
consumers mind.
Legally not linked to quality.
In fact, linked in consumers mind to quality
expectation.


TYPES OF MARKS

Well Known Trade Mark
Collective Mark: Proprietor is an
association of persons, which is legally
not a partnership
Certification Mark: Does not indicate
origin of goods but certifies the goods
as conforming to certain characteristics
(quality, ingredients, geographical
origin etc.) e.g. ISI, AGMARK,
Hallmark etc.

Forms of TM
Visual: Words, letters, numerals,
devices including drawings and
symbols or 2-D representations of
object or a combination of two or more
of these, colour combinations or colour
per se, 3-D sign as shape of goods or
packaging.
Audio: Sounds, Musical Notes
Olfactory: Smells
CRITERIA OF TM PROTECTABILITY
Distinctive (basic function):
- inherent (e.g.RIN), or
- acquired by usage (e.g. TATA)
Non-deceptive ( to avoid misleading)
Not contrary to public order, morality
Special Requirements
A mark is registered for specified classes of
goods or services.

Trade Secret
The best kept
secret till date
Trade Secrets
Some inventions, data, information
cannot be protected by any of the
available means of IPRs. Such
information is held confidential as a
trade secret.
Trade secret can be an invention, idea,
survey method,manufacturing process,
experiment results, chemical formula,
recipe, financial strategy, client
database etc.

When Trade Secrets are
preferred?
When invention is not patentable;
Patent protection is limited to 20 years,
when secret can be kept beyond that
period;
When cost of patent protection are
prohibitive;
When it is difficult to reverse engineer

How to guard Trade
Secret?
Restricting number of people having access
to secret information
Signing confidentiality agreements with
business partners and employees
Using protective techniques like digital data
security tools and restricting entry into area
where trade secret is worked or held
National legislations provide protection in
form of injunction and damages if secret
information is illegally acquired or used.
Industrial Designs
What are Industrial
Designs?
The ornamental or aesthetic aspect of
an article that enhances visual appeal
and differentiates product.
e.g. 3-D features of shape or surface as
of a perfume bottle, 2-D patterns of
lines, shapes and colours as on a bed
sheet.

Criteria for Protection as ID

New and Original
Capable of mass production or
application on an article of utility
Not contrary to public order or
morality
The shape should not be determined
merely by the functionality of the
good.

Comparison of ID against
TM

ID
Has to be integral
part of product


Should be
original and new
but need not be
distinctive
TM
Is applied on the
product but need
not be embodied
in it.
Should be
distinctive
ID, Copyright, Patent
If the article is not mass produced or
the design can not be applied on a
useful article, the design would be
an aesthetic work, protectable under
copyright.
Some engineering designs may be
sufficiently innovative, protectable as
a patent.

ID Protection
Protects commercial exploitation of the
design idea through products/articles
that embody it or reproduce it and
not the articles themselves.
Copyright
Copyright
Copyright protects literary and artistic
works
e.g. Books, lectures, dramatic and musical
works, choreography, cinematography,
drawings, paintings, architecture, sculpture,
photographs, illustrations, maps, plans
sketches etc.
This is automatic right created with the
creation of work and no registration is
required
Rights covered under CR
Moral Rights : Authors right of
paternity. Non-alienable.
Economic Rights : Rights to exploit the
work.
e.g. Rights of translation, rights of
performance, rights of reproduction etc.
These rights can be transferred,
assigned, licensed for economic
benefits.
Who are the Authors?
Writer/writers of the book;
Painter;
Music composer;
Translator;
Cinematographer;
Photographer etc.

Duration of Protection
For books and other works of arts it is 50
to 70 years after the death of the author
(the laws of different countries vary);
For photographic work 25 years from
making the work;
For cinematic works 50 years after
making the work available to public.


Exceptions to Protection
(Free Use or Fair Deal)
Quotations for commentary;
Illustration for Teaching;
Current News Reporting etc.

Free Use is decided by amount of work
used and its economic implications to
the right holder. The mention of
original author/source is must.
Related Rights
Related Rights
(Neighbouring Rights)
Rights related to dissemination of
copyrighted work
They protect:
Performers of Work
Producers of Phonograms
Broadcasting Organizations
International Agreements
Paris convention for the protection of
Industrial Property (1883)
Berne convention for protection of
Literary and Artistic Works (1886)
Agreement on Trade Related Aspects
of Intellectual Property Rights (TRIPS)
(1994)

Emerging Issues in IPR
Traditional Knowledge and Expression
of Culture (Folklore)
Biodiversity and Genetic Resources
Electronic Commerce;
Internet Domain Names;
Protection of databases, software
Any Queries?