INTELLECTUAL PROPERTY LAW

SCIENCE AND TECHNOLOGY

IPR IN RELATION WITH SCIENCE AND

TECHNOLOGY
INTRODUCTION
Introduction Intellectual Property Rights (IPR) are awarded by the society to individuals or
organizations principally over creative works used in commerce and are governed by the
public policy objectives including developmental and technological objectives. In the next
few decades, intellectual property would play a key role in the development process. The
Government of India has taken various steps to bring about changes in the administration of
intellectual property rights in line with the commitments made in international treaties and
agreements, particularly, Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS). These changes give rise to a set of issues, specially with regard to
understanding of IPR by functionaries in various sectors of economy including R&D, trade,
industry, administration, and governance within which the IPR system is required to operate.
R&D institutions create technological innovations and play a significant role in the process of
development. The need for awareness about IPR among R&D institutions in universities,
government, and industry is thus essential.

The role of publicly-funded research and development organizations like CSIR is changing in
the wake of economic liberalization. CSIR is one of the premier R&D organizations in the
country, which is increasingly called upon to compete in the domestic and international
market by enhancing R&D intensity of products and processes in the industrial sector. In
1995, it enunciated a new mission to provide scientific industrial R&D that maximized the
economic (industrial), environmental and social benefits for the people of India. The
emphasis was laid on imparting value addition by enhancing the role of intellectual property,
particularly, patenting in CSIR.

R&D scientists in CSIR are the key players in technology development, who generate
technical information, which is exchanged or shared during the process of research, published
in research journals or exploited commercially through new products, processes, devices or
know – how. In doing so, they require several types of information including IPR
information, for example, relating to patents for effectively carrying out research. There is no
study in the literature that has examined the IPR information for R&D scientists, in general,
and CSIR, in particular. CSIR has, therefore, been chosen for the present investigations of
IPR information for R&D scientists.

Intellectual property:
In principle, the intellectual property is defined as a “product of the mind”. It is similar to the
property consisting of movable or immovable things like a house or a car, wherein the
proprietor or owner might use his property as he wishes and nobody else can lawfully use his
property without his permission. The Convention establishing the World Intellectual Property
Organization (WIPO) in 1967, one of the specialised agencies of the United Nations System
defined the “intellectual property” to include rights relating to:
 literary, artistic, and scientific works,
 performance of performing artists, phonograms and broadcasts,
 inventions in all fields of human endeavour,
 scientific discoveries,
 industrial designs,
 trademarks, service marks and commercial names and designations, and
 protection against unfair competition and all other rights resulting from intellectual
activity in the industrial, scientific, literary or artistic fields.
The main elements of intellectual property, thus, include patent, copyright, trademark,
industrial design, geographical indication, layout design (topographies) of integrated circuit,
protection of undisclosed information and the control of anti-competitive practices. There are
no national laws or international treaties yet that gave property rights to scientific discoveries.

The central objective of intellectual property rights protection is to encourage creative,

inventive and innovative activity resulting from the process of research and development. By
providing exclusive rights for a limited period, the intellectual property system ensures the
legal security to scientific and technological institutions that wish to avail of the possibility to
encourage, through material resources and necessary funding, their scientists in using their
skills in research and development of new ideas. An inventor will be encouraged to share his
invention with the society if he is assured that his rights are protected.

The main elements of intellectual property are defined below:

Patent: The patent relates to creations borne out of inventions, which are solutions to technical
problems. A patent is a government granted and secured legal right to prevent others from
‘practicing’ i.e. making, using, selling or importing the inventions covered by the patent. An
invention is patentable if it is new, involves an inventive step, i.e. it is not obvious in the sense
that it will not occur to any specialist, if such a specialist was asked to find a solution to the
particular problem, and is industrially applicable in the sense that it can be industrially
manufactured and used. Examples are a new ballpoint pen or a new drug molecule or a new fire-
fighting device. The term of a patent is generally twenty years. In specific cases of food, drugs
and pharmaceuticals, it is presently seven years in India.

Trademark: A trademark is an identification symbol, which is used in the course of trade to

enable the purchasing public to distinguish one trader’s goods from the similar goods of other
traders. The public make use of trademarks in order to choose whose goods they can
purchase. If they are satisfied with the purchase they can simply repeat their order by using
the trademark. In order to be eligible for protection a mark is to be distinctive of the
proprietor so as to identify the proprietor’s good, for example, KODAK for photographic
films or COMPAQ for personal computers. Where a trademark is used in connection with
services, it may be called ‘service mark’. For example, service marks are used by hotels,
airlines or travel agencies. The registration for a mark is for ten years and is renewable from
time to time.

Design: The expression ‘Design’ means only the features of shape, configuration, pattern or
ornament applied to any article 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. The design means the features applied to an article and not the
article itself. The features are conceived in the author’s intellect who give those ideas
conceived by him a material (visual) form as a pictorial illustration, or as a specimen,
prototype, or model. By registration under the Act, the features are protected as design. The
protection is given for independently created industrial designs that are new or original, for
example, the distinctive shape of a coke bottle or a pen or a textile design. The protection of
design is for a maximum period of fifteen years.

Geographical indication: A geographical indication is an indication that identifies a good

as originating in a territory where a given quality, reputation or other characteristics of the
good is essentially attributable to its geographical origin. The geographical indication may be
simple and need not be associated with any obligation other than of production in a specified
area, e.g. Darjeeling tea, French wine, Basmati rice, etc. It prevents unauthorized persons
from using the protected geographical indication for products not from that region or from
misleading the public as to the true origin of the product. The geographical indication the use
of which is likely to deceive or cause confusion or contrary to law cannot be registered. The
term of protection is for ten years, which may be renewed from time to time for an unlimited
period.

Copyright: The copyright protects only the form of expression of ideas, not the ideas
themselves. The creativity protected by copyright is creativity in the choice and arrangement
of words, musical notes, colours, shapes etc. only for original works. The copyright protects
the exclusive rights to authorize others to use the protected works e.g. reproduction,
performing, recording, broadcasting, and translation. The copyright subsists in a work for
lifetime of the authors plus 60 years. The examples for protection include books, research
publications, pamphlets, lectures, dramatic or musical works, cinematographic works,
paintings, photographic works, works of applied arts, and maps. The computer programs and
databases are also protected under copyright.

 Unfair competition: In the context of industrial property protection, acts of unfair

competition are those that create confusion with the goods or the industrial or commercial
activities of a competitor, false allegations in the course of trade that discredit the goods or
the industrial or commercial activities of a competitor, or yet, indications or aggregations, the
use of which in trade is likely to mislead the public as to the characteristics of the goods. The
law prohibits such acts.

CONCLUSIONS
It is obvious that management of IP and IPR is a multidimensional task and calls for many
different actions and strategies which need to be aligned with national laws and international
treaties and practices. It is no longer driven purely by a national perspective. IP and its
associated rights are seriously influenced by the market needs, market response, cost involved
in translating IP into commercial venture and so on. In other words, trade and commerce
considerations are important in the management of IPR. Different forms of IPR demand
different treatment, handling, planning, and strategies and engagement of persons with
different domain knowledge such as science, engineering, medicines, law, finance,
marketing, and economics. Each industry should evolve its own IP policies, management
style, strategies, etc. depending on its area of specialty. Pharmaceutical industry currently has
an evolving IP strategy. Since there exists the increased possibility that some IPR are invalid,
antitrust law, therefore, needs to step in to ensure that invalid rights are not being unlawfully
asserted to establish and maintain illegitimate, albeit limited, monopolies within the
pharmaceutical industry. Still many things remain to be resolved in this context.