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Prof. A. B.

Suraj
Intellecture Seminar Series
Bangalore – November 2009
Session Objectives
 To understand the “intangibility” of IPRs

 To appreciate the value of protected IP


in gaining competitive advantage

 To gain an overview of the strategic


elements towards better leverage of IP
IPRs – General Bases
 Economic (and technological) rationale
– aids overall development

 Socialbenefits – enriches the Public


Domain and Basic Research

 Legal monopoly – towards fair regulation


within the territory
Forms of IPRs
 Patents – Patents Act, 1970

 Copyrights – Copyright Act, 1957

 Trade Marks – Trade Marks Act, 1999

 Industrial Designs – Designs Act, 2000


Forms of IPRs …
 Layout Designs of ICs
Semiconductor Integrated Circuits Layout-
Design Act, 2000

 Geographical Indications
Geographical Indications of Goods
(Registration and Protection) Act, 1999
Forms of IPRs …
 Plant varieties – Protection of Plant
Varieties and Farmers’ Rights Act, 2001

 Traditional Knowledge – partly by


Biological Diversity Act, 2002

 Trade Secrets – Contractual – no


legislation in India
The “Intangibles”
 Goodwill and reputation

 Consumer perception/identification

 Scientific and literary acclaim

 Advertising reach

 Traditional usage and “prominence” enjoyed

 Media fame

 One form of IPR leads to the other!


Pressures of
Enforcement
 IPRs = fiercely competitive usage;
justifies criminal remedies too

 IPRs and Global recognition


IPRs are territorial in nature
No single authority or uniform standards
National systems and interests continue to
preside
Principles of
Traditional Management
 Organizing towards:
Perfect replicability & standardization
Ever-increasing scale
Incremental process efficiency

 Efficiency + Productivity = Growth

 Role of IPRs – game-changer?


RoI = Return on Innovations
Maximizes interests; with minimal efforts
Intellectual assets
Key Principles:

 Visibility and full exploitation

 Internal and external – aggressive


pursuit of IP protection

 Role of Intellectual assets in business


alliances and joint ventures
Intellectual assets …
Key Issues:

 Identifyingthe key geographical areas –


for marketing and registration of IPRs

 Studythe level of innovative behaviour


among the competitors; and suppliers

 Role of building brand equity


Offshore
Collaboration
 Typically of three types:
 Captive entity – wholly owned subsidiary – IP is
fully owned; but has other legal implications

 Joint venture – a new combined company – IP is


based on the Shareholding Agreement
○ BOT Model – involves transition risks

 Contracting - with a local Supplier – Enforcement


with due diligence – e.g., Confidentiality; Parent-
subsidiary relations

 Determining factors = cost, commitment,


control, flexibility and liability models
IP issues in
Contracting
 Sharing regime + sustained ownership

 Disparities in applicable laws & IP rights

 Identify, define and document –


processes and products

 Due diligence & IP Valuation


IP issues …
 Enforcement – involves local issues too

 Employer-employee relations – framework


of trusteeship

 Data protection and security

 Dispute settlement and arbitral


enforcement
Emerging issues
 Licensing in IPRs
 Emerging trends in global supply chain
 Minimum level of “reasonable control” – as evidenced in
Contracts and practices
 Raises anti-trust and RTP claims as well

 Securitization of IPRs
 Methods of valuation and their accuracy
 Procedure of affirming “secured interest”

 Liability of Service Providers in E-Commerce


 Scope and content of “due diligence”
 Increasing burden on the ISPs to be “IP-Police”
If we do not use IP …