PAPER – III - INTRODUCTION TO INTELLECTUAL PROPERTY

LAWS
LL.M (I.P.R) – First Semester – Adarsha Law College, Hanamakonda, affiliated to Kakatiya
University, Warangal
2021 Syllabus based self-study notes

Prepared by

Advocate Jonnalagedda Vijay Krishna

B.Com (Vocational), P.G.D.C.A, M.B.A (IT & Marketing), LL.B (Honours), (LL.M (I.P.R))

+91 7670870089 , +91 8008001956 Lawyer.jvk@gmail.com

Self-Study Notes, Not for Commercial Distribution. Compiled for academic purpose only, based on notes and study material available in various public
domains.

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Contents
Syllabus .................................................................................................................................................. 4
UNIT –I:............................................................................................................................................. 5
Introduction to Property .............................................................................................................. 5
Kinds of properties ....................................................................................................................... 6
Theories of Property ................................................................................................................... 11
Theories of Property..Cont ......................................................................................................... 13
UNIT –II: ......................................................................................................................................... 15
Jurisprudential aspects of property .......................................................................................... 15
Right to Property in Constitution of India, Article 300-A....................................................... 37
Analysis of WIPO definition of Intellectual property. ............................................................. 43
Theories of Intellectual Property Rights ................................................................................... 46
UNIT –III: ....................................................................................................................................... 49
Classification of Intellectual Property-Industrial Property and Literary Property ............. 49
Different forms of IP ................................................................................................................... 49
Related Rights ............................................................................................................................. 49
Copyright ..................................................................................................................................... 52
Patents .......................................................................................................................................... 55
Trade names ................................................................................................................................ 57
Trademarks ................................................................................................................................. 59
Trade Secrets ............................................................................................................................... 61
Industrial Designs ....................................................................................................................... 62
Geographical Indications ........................................................................................................... 64
UNIT-IV: ......................................................................................................................................... 65
Emerging forms of IP ................................................................................................................. 65
New Plant Varieties..................................................................................................................... 68
Micro-Organisms ........................................................................................................................ 72
Lay-out Designs ........................................................................................................................... 75
Traditional Knowledge and Indigenous Knowledge ................................................................ 79
Bio-piracy-IPRS and Bio-technology ........................................................................................ 81
Patenting of life forms and bio-ethical issues relating thereto ................................................ 83
Patenting of Genetically modified Microorganisms................................................................. 84
Patenting Animal Cloning .......................................................................................................... 84
Patenting Stem Cells ................................................................................................................... 85
Patenting Genetically Modified Seeds ....................................................................................... 85
Biotechnology Patent and India ................................................................................................. 86

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PATENTABLE INVENTIONS IN BIOTECHNOLOGY ...................................................... 88

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Syllabus
PAPER – III INTRODUCTION TO INTELLECTUAL PROPERTY LAWS
UNIT –I: Conceptual Framework of Property-Legal concept of Property-Elements of
Property- Classification of Property-Corporeal and Incorporeal Property-Movable and
Immovable Property-Theories of Property-Occupation Theory-Labour Theory-Metaphysical
Theory-Economic Theory and Social Trust Theory etc
UNIT –II: Jurisprudential aspects of property –Ownership, Possession and Title-
Constitutional basis of property-Right to property under Article 300-A-meaning , nature and
revolution of intellectual Property-Position in Ancient and Historical India-Analysis of WIPO
definition of Intellectual property.
UNIT –III: Classification of Intellectual Property-Industrial Property and Literary Property-
Different forms of IP-Copyright, Related rights, Patents, Trade names, Trademarks, Trade
Secrets-Industrial Designs-Geographical Indications-Their meaning and Characteristics
UNIT-IV : Emerging forms of IP-New Plant Varieties, Micro-Organisms, Lay-out Designs,
Traditional Knowledge and Indigenous Knowledge-Bio-piracy-IPRS and Bio-technology –
Patenting of life forms and bio-ethical issues relating thereto

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UNIT –I:
Conceptual Framework of Property-Legal concept of Property-Elements of Property-
Classification of Property-Corporeal and Incorporeal Property-Movable and Immovable
Property-Theories of Property-Occupation Theory-Labour Theory-Metaphysical Theory-
Economic Theory and Social Trust Theory etc
Introduction to Property
The word “property” is derived from the Latin word proprietary and the French equivalent
properties, which means a thing owned. Every object, whether tangible or intangible having
some value to human beings, may be termed as Property. The essential characteristic of
Property is the value attached to it. In one way or the other, it is a source of wealth. The value,
although may be either monetary or personal. In a general sense, therefore Property consists of
land, shares, buildings and debts due to another person. However, the term when used in the
legal sense has a definite connotation. It is the right to enjoy and to dispose of certain things in
an absolute manner as one thinks it fit.
Eminent jurist Salmond while defining the term property, observed that the term might be
understood in one of the three senses mentioned below:
(i) The term property includes all the legal rights of a person. That is to say that it
includes complete ownership of a man on material as well as incorporeal things.
(ii) The term includes not a man’s personal rights, but only his proprietary rights.
(iii) The term includes the rights of ownership in material things such as building etc.
According to another jurist, Bentham, the term property includes ownership of material
objects alone. He has, in a way, interpreted the term in a narrow sense.
According to Austin, Property denotes the greatest right of enjoyment known to the law,
including servitudes. The Property includes both proprietaries as well as the personal rights of
a man.
As per different statutes in India
As regards standard definition of the term property, there are different definitions of the term
‘Property’ provided in different statutes in India. For instance, section 2(c) of the Benami
Transactions (Prohibition) Act, 1988 defines Property as, “Property means property of any
kind, whether movable or immovable, tangible or intangible, and includes any right or interest
in such property.” Section 2(11) of the Sale of Goods Act, 1930 defines ‘Property’ as, “Property
means the general property in goods, and not merely a special property.”
Interpretation of the word Property by the Apex Court of India
The honourable Supreme Court of India in the case of R.C. Cooper vs. Union of India AIR
1970 SC 564, interpreted the concept of Property in the legal regime. The court, in this case,
observed that the term property includes both corporeal things such as land, furniture and
incorporeal things such as copyrights and patents. The recent trend of the Apex court, however,
has changed. Court has started viewing Property in the light of Article 21 of the Indian
constitution as liberties exist even reference to the Property owned and possessed.

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Kinds of properties
Property can be broadly classified into the following types
✓ Corporeal and Incorporeal Property
✓ Movable and Immovable Property
✓ Public Property and Private Property
✓ Real and Personal Property
✓ Right in re aliena and Right in re propria
Property is basically of two categories : Corporeal Property and Incorporeal Property.
Corporeal Property is visible and tangible, whereas incorporeal Property is not. Moreover,
corporeal Property is the right of ownership in material things, whereas incorporeal Property
is an incorporeal right in rem. Corporeal Property is further categorized into Movable and
Immovable Property. Incorporeal Property is classified into two categories : in re propria and
rights in re aliena or encumbrances.
Corporeal and Incorporeal Property
(i) Corporeal Property has a tangible existence in the world and is related to material things
such as land, house, ornaments, silver, etc.
(ii) Incorporeal Property is intangible because it’s existence is neither visible nor tangible.
Right of easement and copyrights are incorporeal Property.
The corporeal property encompasses the right to ownership of material things. All tangible and
visible things which can be touched and felt by senses will fall under this property category. It
is further divided into two categories, i.e.,
✓ Movable and immovable property
✓ Personal and real property.
On the other hand, incorporeal property means the right to ownership of the non-material
things. The incorporeal property includes different legally protected valuable interests or
intangibles that cannot be touched or felt but carries specific value. It is also called as
conventional and intellectual property.
Movable and Immovable Property
All corporeal Property may either be movable or immovable in nature. The basis of this kind
of classification is the portability of the object. The two categories are discussed as follows:
(i) Section 3 of the general clauses act, 1897; Section 2(6) of the Indian Registration Act, 1908
defines the term immovable Property. It includes land, things attached and embedded in the
land.
(ii) On the other, movable Property includes any corporeal property which is not immovable
property. It may include furniture, stationery items, etc. The concept of immovable Property
holds greater importance and has elaborately been dealt with under Indian statutes. The
following mentioned are judicially recognized as immovable Property:
✓ Right of way
✓ Right to collect the rent of immovable Property

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 ✓ Right of ferry
✓ mortgagor’s right to redeem the mortgage
✓ The interest of the mortgagee in immovable Property
✓ Right of fishery
✓ Right to collect lac from trees
On the other hand, the following are not judicially recognized as immovable Property:
✓ Standing timber
✓ Growing crops
✓ Grass
✓ Royalty
✓ A decree of sale or sale of immovable property on a mortgage
✓ Right of the purchaser to have land registered in the name
✓ Right to recover maintenance allowance even though it is charged through immovable
Property
Public Property and Private Property
With reference to the concept of ownership, Property may be classified into public and private
property. The two kinds are discussed below:
(i) Public Property is owned by the public as such in some governmental capacity. In other
words, it is owned by the government and used for the beneficial use of the public in general.
A park or a government hospital is a public property.
(ii) Private Property is that Property which is owned by a particular individual or some other
private person. A residential house of a citizen may be his private property.
Real and Personal Property
This distinction between real and personal Property basically originated from Roman law, and
it still exists in England. The two categories of Property are discussed below:
(i) Real Property means all rights over land recognized by law.
(ii) Personal Property means all other proprietary rights, whether they are right in rem or in
personam.
Likewise corporeal property, the incorporeal property is also divided into two classes,
i.e.,
✓ Jura in re propria, (over material things) e.g., copyright, IPR, trademark, patent.
✓ Jura in r Aliena encumbrances (over material and non-material things) e.g., mortgage,
lease, etc.
Right in re aliena and Right in re propria
Right in re aliena are also sometimes referred to as encumbrances. These are the rights of a
specific user. These prevent the owner from exercising some definite right in reference to his
Property. Lease, security and trust may be included under this category.

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Right in re propria are immaterial forms of Property. These are a product of human skill and
labour. Patents, copyrights and commercial goodwill may be included under this category.
Kinds of Intellectual Property
Intellectual Property may be classified into various categories.
A few of the most widely utilized and owned intellectual properties are given below:
Patent
A patent is a kind of Property that has intellectual worth attached to it. It is an exclusive right
granted for an invention which is a product which is a result of a person’s ability to of doing
something or offers a new technological solution to a problem. In order to obtain a patent, it is
necessary that the technological information must be disclosed to the public in a patent
application. A patent so obtained remains in force for twenty years.
Trademark
Another widely popular form of intellectual Property is a trademark. Trademark is a sign
capable of distinguishing goods and services of one enterprise from another. These are
basically a means to protect the unique identity of renowned brands. It enables a customer to
recognize the brand or the product instantly without being misled. An example of a trademark
would be the logos or slogans used by brands to make their products uniquely identifiable.
Copyright
Copyright is available to the creators of literary, dramatic, musical, artistic, producer of
cinematograph acts or sound recording. It determines whether and in what conditions the
original work may be used by persons other than the owner of the unique intellectual property.
Almost every product has copyright. These include the visible symbols on the product
packaging and label etc. Copyrights protect original creative work has been written down on a
piece of paper, saved on electronic storage hard drive device or preserved in some other
tangible format.
Geographical Indicators (gi)
It is an indicator used on products having a specific geographical origin and possess qualities
that exist due to their basic origin. The sign must identify a product as originating in a given
place, and the quality, characteristics or reputation should be due to the place of origin.
Recently, Rasgulla from Orissa and Kadaknath chicken from Madhya Pradesh has been granted
the geographical indication tag in India.
GEOGRAPHICAL INDICATIONS
Geographical Indication (GI) is a tag or sign used on products for indicating their specific place
of origin. It specifies the characteristics, qualities and reputation assumed to be in the product
because of its linkage to a particular geographical location. Any sign can be used as a GI only
when it has the ability of identifying a product to be originating from a particular place. It can
be used for following mentioned things –
a) Agricultural products e.g. Alphonso Mango, Nagpur oranges

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b) Food stuffs e.g. Roquefort cheese is the unique blue cheese from france
c) Wine and spirits e.g. Tequilla made from blue agave plant growing in the city of Tequila,
Mexico
d) Handicrafts e.g. Mahdubani Paintings, Kanchipuram Sarees
e) Industrial products e.g. Darjeeling tea.
Until recently, Geographical indications were not registrable in India and in the absence of
statutory protection, Indian geographical indications had been misused by persons outside India
to indicate goods not originating from the named locality in India. Patenting turmeric, neem
and basmati are the instances which drew a lot of attention towards this aspect of the Intellectual
property. Mention should be made that under the Agreement on Trade Related Aspects of
Intellectual Property Rights (TRIPS), there is no obligation for other countries to extend
reciprocal protection unless a geographical indication is protected in the country of its origin.
India did not have such a specific law governing geographical indications of goods which could
adequately protect the interest of producers of such goods.
To cover up such situations it became necessary to have a comprehensive legislation for
registration and for providing adequate protection to geographical indications and accordingly
the Parliament has passed a legislation, namely, the Geographical indication of Goods
(Registration and Protection) Act, 1999. The legislation is administered through the
Geographical Indication Registry under the overall charge of the Controller General of Patents,
Designs and Trade Marks.
The salient features of this legislation are as under:
(a) Provision of definition of several important terms like “geographical indication”, “goods”,
“producers”, “packages”, “registered proprietor”, “authorized user” etc.
(b) Provision for the maintenance of a Register of Geographical Indications in two parts-Part
A and Part B and use of computers etc. for maintenance of such Register. While Part A will
contain all registered geographical indications, Part B will contain particulars of registered
authorized users.
(c) Registration of geographical indications of goods in specified classes.
(d) Prohibition of registration of certain geographical indications.
(e) Provisions for framing of rules by Central Government for filing of application, its contents
and matters relating to substantive examination of geographical indication applications.
(f) Compulsory advertisement of all accepted geographical indication applications and for
inviting objections.
(g) Registration of authorized users of registered geographical indications and providing
provisions for taking infringement action either by a registered proprietor or an authorized user.
(h) Provisions for higher level of protection for notified goods.
(i) Prohibition of assignment etc. of a geographical indication as it is public property.
(j) Prohibition of registration of geographical indication as a trademark.

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(k) Appeal against Registrar’s decision would be to the Intellectual Property Board established
under the Trade Mark legislation.
(l) Provision relating to offences and penalties.
(m) Provision detailing the effects of registration and the rights conferred by registration.
(n) Provision for reciprocity powers of the registrar, maintenance of Index, protection of
homonymous geographical indications etc.
Industrial Design
Industrial design is related to the products which are a part of the industrial set up. It refers to
the shape, configuration, colour or pattern which may be an ornamental or aesthetic aspect of
a product. The owners of a registered industrial design have a right to prevent third parties from
making, selling, importing articles bearing a design which is a copy. Thereby any person using
someone else’s industrial design may be liable to pay damages to the owner of the industrial
design.
Trade Secret
Trade secret in simpler terms implies the strategy adopted by the owner of the business. It may
be any confidential business information which provides an organization with a complete edge
in the world market of the respective product it deals with. A trade secret is an initial step for
an investor. It is essential that the idea or formula behind the unique trade opportunity remains
secretive. Any person or organization indulging in unauthorized use of trade secrets is regarded
to be guilty of unfair trade practice. For example, the recipe of any popular noodles brand may
be considered as a trade secret of that brand.
TRADE SECRETS
It may be confidential business information that provides competitive edge to an enterprise.
Usually these are manufacturing or industrial secrets and commercial secrets. These include
sales methods, distribution methods, consumer profiles, and advertising strategies, lists of
suppliers and clients, and manufacturing processes. Contrary to patents, trade secrets are
protected without registration.
Trade secret may be in the form of a
a) formula
b) practice
c) process
d) design
e) instrument
f) pattern
g) commercial methods
h) complilation of information not generally known

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A trade secret can be protected for an unlimited period of time but a substantial element of
secrecy must exist so that, except by the use of improper means, there would be difficulty in
acquiring the information. Considering the vast availability of traditional knowledge in the
country, the protection under this will be very crucial in reaping benefits from such type of
knowledge.
Commercial Goodwill
Commercial goodwill is a prominent form of incorporeal right. The goodwill of a commercial
business is a valuable right acquired by the owner by his labour and skill. The owner has the
exclusive right of use and profit from the business and anyone who seeks to make use of it by
falsely representing to the public that he is himself carrying on the business in question shall
be violating this right.

Theories of Property
Occupation Theory
French thinker of the Enlightenment, Jean-Jacques Rousseau, elaborated a theory of property
based on first occupation justified by labour. He held that the first appropriation is mutually
recognised, and that unequal distribution is due to the different abilities of man.
This theory suggests that the party who is the original discoverer and occupant of property was
entitled to dispose of those assets. This approach has the advantage of certainty and security as
the person in possession can retain possession until someone else shows a better title. This
philosophy is reflected in the law of property. If a person retains possession of land over a long
period of time this may make this possessory title unassailable by the original owner. This is
based upon the concept of adverse possession of land. If you squat on land for many years and
the true owner does not remove you from the property in some circumstances you may be
acknowledged as ‘owning’ the land. To put an end to this Hobbesian “free for all”, the people
concluded a social contract, which also regulates appropriation. Thus, Rousseau does not attach
too much importance to who owns what: he is more interested in the fact that the individual
acknowledges exclusion.
Exclusion, however, cannot be guaranteed in the state of nature, and the French philosopher
ends up with creating a strong State, which subordinates individual rights of ownership to the
community, and the State becomes the sole owner. This resembles Hobbes’s Leviathan, but it
can be distinguished by the fact that according to Rousseau, the State represents the general
will of its citizens, and its main objective is to oppose inequality.
Labour Theory
According to John Locke, man owns himself, and by extension, everything that he produces.
His famous theory of labour argues that by mixing work with nature, the resulting goods will
necessarily belong to the worker. This theory suggests that a person is entitled to the full
produce of their labour. The basis behind this theory is that a society should encourage labour
and property should be distributed according to one’s productivity. The theory is based on the
approach that originally all property was owned in common but people had the right to
appropriate this property by co-mingling their labour with it.

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Locke published his ‘Two Treatises of Government’ in 1690. In the second treatise, he presents
his labour theory of property acquisition, which was fundamentally different from the widely-
practiced approaches of divine right, royal patronage, or traditional limited access to common
property. It attempts to justify the establishment of private property outside of social context
(i.e. without approval of one’s peers or neighbours) and governmental regulation. Today, many
of the same arguments are used to justify resistance by existing owners of private property and
users of public property to governmental interventions in their rights of ownership.
In Locke’s state of nature, the commons exist as a true common property resource, as
characterised by Bromley. The state of nature is not a lawless wilderness or an open access free
for all; the state of nature is utilised and governed to achieve a particular set of objectives by
following certain rules assigning rights and duties.
The labour theory on equity grounds would curtail the establishment of new private rights.
Utilitarian’s, arguing on efficiency grounds, would advocate for the expansion of private rights
as scarcity increases. Utilitarian analysis can also complement the labour theory’s focus on
anthropocentric use-rights by accounting for existence values, other non-use values, and
biocentric values. Locke’s argument that labour establishes the property right makes sense if,
like Locke and his contemporaries, one sees humankind as made in the image of God, and
human activity as the extension of God’s will on earth. Absent this religious sentiment, the
labour theory of acquisition becomes nothing more than property acquisition based on first
occupancy.
Metaphysical Theory
The metaphysical theory was propounded by Kant and Hegel. According to Kant, "A thing is
rightfully mine when I am so connected with it that anyone who uses it without my consent
does me an injury." According to Hegel, "property is the objective manifestation of the
personality of an individual. In other words property in an object on which person has liberty
to direct his will."
Kant observed that law of property does not merely seek to protect possession where there is
an actual physical relation between the possessor and the object, but it goes beyond and
considers the personal will of the individual more important in the concept of the property.
This theory has been criticized on the ground that it is a little concerned with realities and is
based on theoretical assumptions.
Economic Theory
The argument of profounder of economic theory is that the maximum production of goods and
services is the aim of the society. It can be achieved by means of maximum productivity. On
scrutiny it can be found that the quality, quantity and nature of production is correlated and
geared to increase the individual profits. The desire of the individual profits which is
paramount, subordinates all other ends, useful to the society. Secondly private property by itself
does not result in the increase of certain things. It is proved that land yielded more fruits under
government rather than private. The economic reason for creating such a property is also
obvious. It is argued that unless the inventor is given monopoly right to exploit his invention ,
the inventor will neither have impetus to invest things or amounts or invent.
Social Trust Theory

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It is considered by some great thinkers that an individual should hold the property not merely
for the welfare of himself and his family, but also should hold the property as trustee for the
beneficial enjoyment of his kith and kin and all others who are connected to him one way or
other. In other words, the owner holds the property as trustee on behalf of the society.
Theories of Property..Cont
Different theories laid down on the subject of concept of “Property” are as follows:
(a) Historical Theory of Property;
(b) Labour Theory (Spencer);
(c) Psychological Theory (Bentham);
(d) Functional Theory (Jenks, Laski);
(e) Metaphysical Theory
(f) Philosophical Theories (Property as a means to Ethnical Ends and Property as an End in
itself).
a) Historical Theory
Historical theory of the origin of the property was propounded by Bentham and Henry Maine
was well known supporter of the this theory According to the Historical theory of Property, the
concept of Private Property grew out of joint property. It has following main features
i) Private property has witnessed slow and steady growth
ii) It grew out of collective or joint property
iii) First stage of development consisted of natural possession
iv) Second stage of development resulted in juristic possession
v) Final and last stage of development lead to evolution of concept of ownership
In the words of Henry Maine, “Private Property was chiefly formed by the gradual
disentanglement of the separate rights of individual from the blended rights of the community”.
In the earlier days, the ownership rights over property were vested in large societies which
were chiefly Patriarchal societies. However, with the disintegration of societies and families,
there was a gradual evolution of the concept of individual rights. Roscoe Pound in his theory
has also pointed out the fact that the earliest form of property was in the nature of group
property and it was later on when families partitioned that the existence of individual property
came to be recognised.
b) Labour Theory (Spencer)
This theory of property is also known as ‘Positive Theory’ was propounded by Spencer. The
underlying principle basis of this theory is that labour of the individuals is the foundation of
property. The theory advocates that , a thing (res) is a property and it belongs to the person who
takes the pain of bringing into exsistence. Spencer, who developed the theory on the principle
of ‘equal freedom’ has stated that property is the result of individual labour, and therefore, no
person has a moral right to property which he has not acquired by his personal effort.

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c) Psychological Theory (Bentham)
Bentham propounded this theory. According to this theory, Property came into existence on
account of the acquisitive instinct of the human beings. Every individual has a desire to own
and have into his possession things which is the factor responsible for bringing Property into
existence. According to Bentham, Property is altogether a conception of mind and thus it is
nothing more than an expectation to derive certain advantages from the object according to
one’s capacity.
Roscoe Pound also supports Bentham on this school of thought and has observed that the sole
basis of conception of Property is the acquisitive instinct of individual which motivates him to
assert his claim over objects in his possession and control.
d) The Sociological Theory / Functional Theory (Jenks and Laski)
This theory is also known as the ‘sociological theory of property’. It assumes that the concept
of Property should not only be confined to private rights, but it should be considered as a social
institution securing maximum interests of society. Property is situated in the society and has to
be used in the society itself.
According to Jenks, no one can be allowed to have an unrestricted use of his property, to the
detriment to others. He thus states that the use of property should conform to the rules of reason
and welfare of the community.
According to Laski, who also supports this school of thought, Property is a social fact like any
other, and it is the character of social facts to alter. Property has further assumed varied aspects
and is capable of changingfurther with the changing norms of society.
e) The Metaphysical Theory
Kant and Hegal propounded this theory. According to Kant “ A thing is rightfully mine when
I am so connected with it that anyone who uses without my consent does me an injury.
“According to Hegel, “ property is the objective manifestation of the personality of an
individual. In other words property in an object on which person has liberty to direct his will”.
Kant observed that law of property does not merely seek to protect possessions where there is
an actual physical relation between the possessor and the object , but it goes beyond and
considers the personal will of the individual more important in the concept of the property.
f) Property is the creation of the State
The origin of ‘Property’ is to be traced back to the origin of ‘Law’ and the ‘State’. Jenks
observed that Property and Law were born together and would die together. It means that
Property came into existence when the State framed Laws. As per this theory, Property was
non-existent before Law.
According to Rousseau, ‘it was to convert possession into property and usurpation into a right
that Law and State were founded.’ The first who enclosed a piece of land and said – this is
mine – he was the founder of real society. He insisted on the fact that property is nothing but a
systematic expression of degrees and forms of control, use and enjoyment of things by persons
that are recognised and protected by law. Thus, the conclusion is that property was a creation
of the State.

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Philosophical Theories (Property as a means to Ethical Ends)
In the views of Aristotle, Hegal and Green, Property has never been treated as an end, but
always as a means to some other end. According to Aristotle, it may be a means to the end of
Good Life of citizens. In the views of Hegal and Green, it may be a means to the fulfillment of
the Will without which individuals are not full human. According to Rousseau, Jefferson,
Friendman, it may be a means as a pre-requisite of individual freedom seen as a human essence.
The supporters of utilitarian tradition treat, accumulation of property as, an end, always meant
as a right of unlimited accumulations. Later the concept changed and the utilitarian Bentham
held that ultimate end to which all social arrangements should be directed is maximization of
the aggregate utility i.e. pleasure minus pain of the members of the society.

UNIT –II:

Jurisprudential aspects of property

The term property means things which are owned. In other words, it means those things on
which right of ownership can be expanded. It includes both living and non living things. In
broader sense, it means the things without which a person cannot live and it includes rights to
live, personal liberty and all those rights which the person an exercise against others.
The term Property is defined by many scholars but Salmond defines it more specifically then
all the others. He defined it as the law of property is the law of proprietary rights ‘right in rem’,
the law of proprietary rights ‘in personam’ is distinguished from it as the law of obligations.
According to this usage, a freehold or leasehold estate in land, or patent or copyright is included
in property but debt or shares or benefit arising out of a contract is not property.
According to Salmond, the term property has variety of sense.
1) Legal rights: these rights are owned by the way of way. A person can exercise them on others
and it includes personal and proprietary rights.
2) Proprietary rights: it means land, chattels, debts are included in property but not right to life
and reputation are included.
3) Corporeal rights it says that only land chattels which can be seen are covered under corporeal
rights but not debts and shares.
Types of property
CORPOREAL
It includes material property which can be touched e.g. land, money, chattels and it further
divided into two parts and these are:
1) Movable and immovable property
Immovable property is permanently attached to the earth and cannot be moved from one place
to another for example land, house, etc. But movable property can be moved from one place to
another with the help of a person and that includes chattels, ornaments.

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2) Real and personal property
There is no basic difference between the real and personal property but all those rights which
are recognised by law are real rights whereas personal rights includes proprietary rights over
the property whether right in rem or right in personam.
INCORPOREAL
Basically, incorporeal rights are those proprietary rights which are covered in right in rem and
are not tangible in nature. It can further divide into two parts.
1) Jura in re aliena
Jura in re aliena is also known as encumbrances. It is basically property of one person that is
used by other person.
It includes: Lease; Servitude; Securities; Trusts
2) Jura in re propria
It is the right over the immaterial things. The person attains this right due to his skill and labour.
It is categorized into following:
1) Patent

2) Copyright

3) Commercial Goodwill

Possession of property
As said by salmon possession is the most basic relation between a man and a thing. Since the
human life and human society is not possible without material things, it makes the possession
of these material things very necessary. With the process of civilization, with the people
struggling for existence started taking the possession of certain objects and considered them
their own. Possession being a legal as well as factual concept it becomes impossible to define
covering all the legal scenarios and situations in which it may apply. Some of the jurists have
defined possession in some ways,
According to Salmond, “possession is the continuing exercise of a claim to the exclusive use
of an object.”
Savigny defines Possession as, “intention coupled with physical power to exclude others from
the use of a material object.”
According to Ihering, “whenever a person looked like an owner in relation to a thing, he had
possession of it unless possession was denied to him by rules of law based on practical
convenience.”

16
Speaking the legal sense, possession is not just having a control over a thing but rather it should
be coupled with an intention of exercising that particular power, excluding others from it. A
number of legal consequences get attached with possession, its acquisition and loss and hence
it is a difficult concept in legal perspective considering its subjectivity. It is evident that we
work under the assumption that if a thing is in the possession of someone, then he is the owner
and any other person claiming the thing needs to prove better possessory rights.
This principle has even been invalidated under Indian Evidence Act, 1872 under section 10 as
follows –
Burden of proof as to ownership- when the question is whether any person is the owner of
anything of which he is shown to be in possession, the burden of proving that he is not the
owner is on the persons who affirms that he is not the owner.
Even in the case of B. Gangadhar v. B.R. Rajalingam, while explaining the relation between
possession and ownership, the Supreme Court of India stated that possession is the external
form in which claims normally manifest themselves. It is in fact, what ownership is in right
enforceable at law to or over the thing.
Types and elements of possession
Types – Possession in fact or the de facto possession of a thing refers to the physical possession
over a thing which needs not be continuous. Mere intention to exercise the physical control and
to exclude others from it is enough to constitute possession in fact. There needs to be a physical
contact. While if we talk about possession in law or the de jure possession of a thing refers to
the possession of the thing which is recognized by the law. Generally, a person who is in de
facto possession of a thing also has a de jure possession over it. But still it has certain
exceptions. Like for example in case your servant has a physically has something with him but
still the real possessor remains the master. And hence it becomes a case of possession in fact
but not possession in law and the vice versa case also exists that is called constructive
possession. So we can say they mostly exist together but still not always. Even the Roman law
recognizes the difference between these two.
Elements – Possession constitutes of two elements, one being corpus of the possession and the
other being animus of the possession. Corpus of the possession refers to the object or the body
which is in the possession of the possessor and animus refers to the intention to hold or retain
the possession. Both of them are required to constitute a valid possession as neither one of
therm alone is sufficient. Corpus possessionis cannot exist without animus possidendi.
Acona v. Rogers- Here, the owner of a house allowed a lady to keep her luggage in one of the
rooms of the house. But the keys of that room were with the lady and not with the owner of the
house. And thus, the court held that in the eye of law the lady was in possession of the luggage
and not the owner of the house.
Elwas v. Rogers- the plaintiff gave their land on lease to the defendant for erecting a gas plant.
The defendant found a pre-historic boat below the land. The court held that the plaintiff had
the right to possession over the boat.
At the end it can be concluded by saying that though possession of property is the most
fundamental relation between a thing and a man but yet when it comes to simplifying or
defining it is one of the most difficult concept. Law protects possessor of a thing against every

17
person other than someone who has a better title or possessory right and it is evident through
various remedies that our law gives like the doctrine of jes tertii and some statutory remedies
are also there.
Ownership and Title
The bundle of right of a person over a thing gives him ownership of the thing and the control
so exercised by the person over that thing makes the thing the property of that person. The
concept of ownership is of both legal and social interest. Not only have court utilized the idea
in such a way as to give effect to views of changing individual and social interest, bur so great
are its potentialities that in recent times it has become the focus of government policy.
The earliest known use of the word ‘owner’, according to Maitland, quoting Dr. Murray,
occurred in 1340, and ‘ownership’ in 1583. ‘Early law’ says Holdsworth, ‘does not trouble
itself complicated theories as to the nature and meaning of ownership and possession.
First, the conception of the possession came into being, and then the conception of the
ownership came into being, and then ownership developed due to changes in the economic
structure of the society. In Roman law, as well as in ancient Hindu law, possession and
ownership were recognized as two separate and distinct conception.
Hindu Law
The law of prescription, bailment, and sale without ownership, under the ancient Hindu laws,
was based on the distinction of possession and ownership. The ancient Hindu lawgivers like
Manu, Yajnavalakya, Vyasa, and Narada pointed out that possession of landed property for
twenty years, and of chattels for ten years, by a person created title by prescription. Possession
was proof of ownership through pure title. As regards to the sale without ownership, Narada
and Yajnavalakya said that when an article or a chattel has been sold by a person who is not
the owner, the rightful owner should obtain it from the purchaser.
The concept of ownership which is highly developed one in the ancient laws of the Hindus has
been spoken of as a special capacity produced by the acts of purchase, acceptance, and the
inheritance, gain, purchaser, conquest, investment of Health, employment.
Definition of Ownership
Austin- “a right indefinite in point of user unrestricted in point of disposition and unlimited in
point of duration over a determinate thing.”

According to Austin, there are three elements of ownership-

Indefiniteness in point of user

He says, no one can exhaustively enumerate the various ways in which the owner may make
use of his property. Bur unrestricted user in all system of laws is qualified by the law of
nuisance in accordance with the maxim ‘sic utereturat alienum leadas’ (so use your own
property as not injure your neighbors). Again an owner’s indefinite user is restricted by

18
encumbrances in favour of other persons and again limited by any restriction which the state
may care to impose in the interest of community by such statues as Town planning Acts, etc.

Unrestricted in point of disposition

He says, the owner can make any kind of alienation, whether by way of gift, sale, exchange or
lease or in any other manner permitted by the law. But it is not true in any system of law, such
as, in English law, the inheritance (family provision) Act of 1938. In India, the
Marumakkathyam law, alienation of ancestral immovable property in Mitakshra law. In
Germany, division of small farms beyond a particular limit is not permissible. Further, the
Government may acquire any property for public purposes irrespective of the owner’s dissent.
Unlimited in point of duration
He says, Ownership is perpetual and is transmissible from the owner to his heirs. But it is not
necessary that an owner’s right should be unlimited in point of duration. It may end with his
death or insolvency and or on the happenings of some other contingency as in cases where the
ownership is subject to a condition subsequent. Again the rule against perpetuity is another
limitation upon the unlimited duration and powers of disposition of the owner.
Salmond improves upon Austin’s definition. According to him: “the ownership of a material
object is to a right to the general or residuary uses of it after the deduction of all special and
limited rights of use vested by way of encumbrances in other persons.”
“Ownership in most comprehensive sense denotes relation between a person and a right that is
invested in him.”
Thus, according to Salmond, ownership is, therefore, ‘incorporeal’. He then went to say that to
speak of the ownership of physical objects is a figure of speech. What is meant is that certain
claims are vested in a person.
Duguit has criticized Salmond’s definition and asserted that what a person really owns is a
‘thing’ and not a ‘right’. Cook has characterized Salmond’s definition of ownership as an
‘unnecessary confusion’.
Analysis of ownership
The main rights of ownership are there-
1. The right of possession of the property owned,
2. The right of enjoyment of the property; it includes the power to deal with the property
as the owner pleases (in accordance with the manner prescribes)
3. The power to dispose of the property.
There are certain restrictions upon the property; it includes the power to use it.
Article 19 of the constitution says-
All citizens shall have the right,
b) To acquire, hold and dispose of property,

19
The state can impose reasonable restrictions on the exercise of the right by the law in the
interests of the general public, or for the protection of the interests of any scheduled tribe.
(Article 19(5))
The state cannot deprive anyone of the property owned by him except in the manner and for
the purpose prescribed by law.
• Ownership in English law can only be vested in a person.
• Ownership is needed to give effect to the idea of ‘mine’ and ‘not mine’ or ‘thine’. One
aspect of it is that the idea becomes necessary only when there are some relations
between persons.
• The right of ownership comprises benefits and burdens. The former consists of claims,
liberties, powers, and immunities, but the advantage these gives are curtailed by duties,
liabilities, and disabilities.
• Ownership is a social institution. The extent of the rights, privileges, powers, and
immunities that are exercisable by an owner reflect the social policy of the legal
system.
• Ownership arises only in such a way as are specified by each legal system, as, in
classical Roman law for the transfer of ownership in certain kinds of things, special
ceremonies were required.
• Ownership is a source of social power. Social reformers, notably those who accept the
teaching of Karl Marx of ownership.
Subject Matter of Ownership
Ordinarily, the subject matter of ownership consists of material objects like land, chattels, etc.
the wealth and assets of a person such as interests in the land, debts due to his shares in a
company, patents, copyrights, etc. may also be subject matter of ownership. Thus intangible
rights may also constitute subject matter of ownership.
Salmond also supported this view that right may also be subject matter of ownership though a
man is said ‘not to own, but to have a right.’
In the Bank Nationalization case 1970, Supreme Court held that property includes not only
tangible things but also intangible things, (Rustom Cavasjee Cooper v. Union Of India (1970
AIR 564, 1970 SCR (3) 530). Likewise, the Supreme Court has held privy purses as property
within the meaning of Article 19 and 31 of the constitution.
Kinds of Ownership
On the basis of English law, the ownership is classified in the following ways:
Corporeal and incorporeal ownership
The ownership of material objects is called corporeal ownership whereas the ownership of right
is called incorporeal ownership. Thus the ownership of a house, table, land, machinery, etc., is
corporeal ownership and the copyright, patent, trademark, right of way, etc. is incorporeal
ownership.

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Corporeal things are those which are tangible that is, which can be felt by the senses while
incorporeal things are intangible and cannot be felt by senses.
Salmond thinks that the distinction between corporeal and incorporeal has merely a theoretical
significance because in either case, the ownership is the right vested in the owner and not the
material object.
Sole and Co-ownership
When the ownership is vested in one person only, it is called the sole ownership and when it is
vested in more than one it is called co-ownership, ex-partnership.
‘Tenants in common’ and ‘joint tenants’ (in English law) are co-owners of the tenancy. In
India, the coparcenary of Hindu is also a co-ownership.
Co-ownership is possible only so far as the law makes provisions for harmonizing in some way
the conflicting claims of the different owner inner se. There is an existence of reciprocal
obligation of restricted use and enjoyment between co-owners.
Trust and beneficial ownership
The institution of trust and beneficial ownership was not the same as now, the institution of
trust and the rights of the trustee and the beneficiary are the special creation of English ‘equity’.
The relation in trust is that there are two or more sets of owners- one set is under an obligation
to use its ownership for the benefit of another, the former is called the ‘trustee’ and the letter is
called the ‘beneficiary’, and this is ‘beneficial ownership’. Professor Campbell suggests the
term ‘bare ownership’ in place of trust ownership. A trustee in legal theory is owner, though,
he has no right to use the property for himself. The purpose of trusteeship is to protect the rights
and interests of persons, who for any reason, are unable to protect them for themselves. That
which the trustees owns, the beneficiaries owns also.
In agency the property is vested solely in the principal, in a trust, it vests in beneficiary and
trustee.
Legal and equitable ownership
The dictation is recognized in English law, it is closely connected to the theories of trust and
beneficial ownership. In English, the ownership recognized under the rules of common law (in
common law courts) was legal ownership and ownership which was recognized under the
Equity courts on equitable principle was called equitable ownership. It is the duplicate
ownership, one person is the legal owner and another is the equitable owner of the same right
at the same time. If the legal right to a thing is in ‘A’, but the beneficial right to it is in ‘B’, then
the court of Equity would decree that ‘A’ held as trustee for ‘B’.
Vested and Contingent Ownership
Ownership is said to be vested when the owner’s title is already perfect. It is called contingent
when the owner’s title is as yet imperfect but is capable of becoming perfect in the future on
the fulfillment of some condition. It is vested ownership, the property is owned absolutely.

21
In contingent ownership, the property is owned conditionally. It means that the investetive facts
are incomplete, but it may be completed in the future. Till then the ownership is contingent and
when the required condition is fulfilled, it becomes complete or vested.
In India, a vested or contingent interest takes place on a transfer of property, is given in the
place on a transfer of property, is given in the ‘Transfer of Property Act (Act IV of 1882)
In Shashi Kanta v. Pramodchandra (A.I.R. 1932 Cal. 609), their lordship of the Calcutta High
Court pointed out the distinction between a vested and contingent interest
Absolute and limited Ownership
When in a person all the rights of ownership (i.e. possession, enjoyment, and disposal) are
vested without any restriction (except that imposed by law in the interest of society), his
ownership is absolute ownership, but when there are limitation on user, or duration or disposal,
the ownership is limited ownership. An example of limited ownership, in English law is life
tenancy when an estate is held only for life. In Hindu law (before 1956) women’s estate was a
limited ownership.
Method of Ownership
Broadly speaking, there are two modes of acquiring, namely,
1. Original;
2. Derivative.
Original
Original acquisition of ownership takes place when ownership is acquired by some personal
acts on the part of the acquirer. It is of three kinds-
Absolute– when a thing is acquired which has no previous owner (res nullius), it is done in
two ways-
• Occupation – for a thing of which there is no owner, as a bird in the air and a fish in
the water, the general rule of Roman law that the first occupier became the owner. In
Roman law, the property obtained by conquest was treated as res nullius, and therefore
it rules applied. Manu recognized conquest as a mode of acquisition. And also if anyone
found the treasure on its land, he took whole.
• Specification- If a person by working upon a material belonging to another made it into
something new, he became the owner of the new product. For ex- if a sculptor made a
statue. There are no such rules in modern times.
Extinctive- when a person by some act on his ownership of the previous owner and acquires
its ownership himself, it is called extinctive acquisition. For example, acquisition of ownership
by prescription is 12 years in India.
Accessory- This is called accessory acquisition that is when the ownership of a property is
acquired by way of accession to some existing property. Examples are produce of land or
animals or fruits of trees. Manu has termed this mode of acquisition as ‘property’ which means
acquiring by accession.

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Derivative Acquisition
when ownership is derived from a previous owner, it is called derivative acquisition of
ownership. It takes place when ownership is acquired by inheritance or gift or purchase etc.
Ownership and possession- distinguished
1. Speaking on the distinction between the two Salmond has stated that, possession is in
fact, what ownership is in right. Ownership is the guarantee of the law, possession is
the guarantee of facts.
2. Ownership cannot be last without the consent of the owner whereas accident may be
lost either by accident or by the wrongful act of another.
3. There may be ownership without possession of a debt which is capable of being owned
but not possessed.
4. Possession and ownership differ in their mode of acquisition also.

Constitutional basis of property-Right to property under Article 300-A-meaning , nature and

revolution of intellectual Property-Position in Ancient and Historical India-Analysis of WIPO
definition of Intellectual property.
Supreme Court’s View
Defining the property as a legal concept, the Supreme Court in Guru Dutt Sharma V. State of
Bihar, observed that it is a bundle of rights, and in the case of tangible property, it would include
the right of possession, the right to enjoy, the right to retain, the right to alienate and the right
to destroy.
The Supreme Court has said in Commissioner, Hindu Religious Endowment V. K.
Lakshmindra, that there is no reason why the word ‘property’ as used in Article 19(1) (f) of the
constitution should not be given a liberal and wide connotation and should not be extended to
those well recognised types of interests which have the insignia or characteristic of proprietary
rights.
It was due to the reason of giving such a wide meaning to ‘property’ that in one case (Shantabai
V. State of Bombay) it was held that a bare contractual right unattended with any interest in
property is property.
The modern judicial trend to interpret right to property in the light of Article 21 of the
Constitution dealing with personal liberty also deserves mention at this place. The Apex Court
in a number of cases has expressed the view that Article 21 in its widest magnitude covers a
variety of rights which constitute the personal liberty of a man.
Therefore, despite the fact that the right to property as a fundamental right has been abrogated
and repealed, this right may still be interpreted by the Court as an aspect of personal liberty
under Article 21.

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Right to Property in India
After the Indian Independence, when the Constitution of India came into force on 26th January,
1950, the right to property was included as a ‘fundamental right’ under Article 19(1)(f) and
Article 31 in Part III, making it an enforceable right.
However, during the first decade of independence era, it was felt that the right to property as a
fundamental right was a great impediment in ushering a just socio-economic order and a source
of conflict when the State was to acquire private property for public purposes, particularly,
expansion of rail, road and industries etc.
In order to get rid of this hurdle, the Supreme Court in the historic case known Fundamental
Rights Case held that the right to property is no part of the basic structure of the constitution
and therefore, Parliament can acquire or take away private property of persons for concerned
good and in the public interest.
Thereafter, Parliament passed the Constitution 44th Amendment which made right to property
an ordinary legal right under Article 300-A.
However, the Supreme Court in one of the cases has made it clear that the executive cannot
deprive a person of his right to property without the authority of law. The State can acquire a
person’s property for public purpose on payment of compensation, which need not be
necessarily just equivalent of the value of the property so acquired, but such compensation
must not be illusory and irrationally disproportionate.
The latest position with regard to property in India is well expressed by the Supreme Court of
India in Indian Handicraft Emporium v. Union Of India, wherein the Court observed that right
to property is a human right as a constitutional right under Article 300-A, but it is not a
fundamental right. It is indeed a Statutory right but each and every claim to property would not
be property rights.
Modes of Acquisition of Property/ when possession ripens into ownership
There are four important modes of the acquisition of property. They are: Possession,
Prescription, Agreement, and Inheritance. These four modes may be put in two classes:
1. Acquisition inter Vivos- it includes possession, prescription and agreement.
2. Succession on death i.e. Inheritance.
Acquisition inter Vivos- As mentioned earlier it includes the possession, prescription,
agreement which are discussed as follows:
Possession
Possession is the objective realization of ownership. It is prima-facie evidence of ownership.
The property which belongs to no one i.e. res nullius, belongs to the first possessor of it and he
acquires a valid title to it as against the world. Thus the fish of the sea and the bird flying in
open sky belong to one who first succeeds in obtaining possession of them and acquire an
absolute title over them. This mode of acquisition has been called as occupatio in Roman law.

24
A property which is already in possession of someone else, when acquired by possession, gives
a good title to the possessor against all third persons except the true owner. In such a case of
adverse possession there are in fact two owners, the ownership of one is absolute and perfect,
while that of the other is relative and imperfect and often called as possessory ownership by
reason of its origin in possession.
If the person in adverse possession i.e. possessory owner is wrongfully deprived of the thing
by a person other than the true owner, that person cannot set up the defence of jus tertii, that
is, he cannot plead that the thing does not belong to the possessory owner either.
In other words, a possessory owner’s possession shall be protected against all except the true
owner. This rule is justified on the ground of maintenance of peace and order and to prevent
misuse of force.
Prescription
Prescription may be defined as the effect of lapse of time in the creation and extinction of legal
rights. It is operation of time as a vestitive fact.
It has two aspects, namely, positive or acquisitive and negative or extinctive.
The creation of a right by the lapse of time is called the positive or acquisitive prescription
whereas the extinction of a right by the lapse of time is called extinctive or negative
prescription.
For example, the acquisition of right of way by use of it for a prescribed period (in India
according to the easement act this period is 20 years) is a positive prescription.
For example, the right to sue for debt is destroyed after a prescribed period (in India it is 3
years). Thus, it is a case of negative prescription. The prescription is based on a conclusive
prescription of rightfulness of a long possession, and it is against the person who is not in
possession or is not exercising his rights.
The positive prescription is generally based on the ground of possession. Therefore, it would
apply on those objects only which admit of possession.
Negative prescription is common to law of property and obligations. According to Salmond,
negative or extinctive prescription is of two kinds, namely: Perfect and Imperfect.
Perfect negative prescription results in the destruction of principal right itself whereas
imperfect prescription destroys only the right of action not the principal right.
Law of prescription is based on the general principle that law helps the vigilant and not the
dormant.
Agreement
Property may also be acquired by agreement which is enforceable by law.
Paton defines agreement as an expression by two or more persons communicated to each other,
of a common intention to affect the legal relations between them. It therefore follows that an
agreement has four essential elements, namely:
1. It being a bilateral act, there should be two or more parties to an agreement;

25
 2. Mutual consent of the parties;
3. It should be communicated;
4. There should be common intention to affect the legal relationship.
As a proprietary right in rem, agreement is of two kinds, namely:
1. Assignment;
2. Grant.
An assignment transfers the existing right from one owner to another, e.g., assignment of a
subsisting lease-hold from assignor to assignee.
Under a grant, new rights are created by way of encumbrance upon the existing rights of the
grantor, e.g., grant of a lease of land is the creation of agreement between grantor and grantee.
Agreements may either be formal or informal. Formal agreements are written and require the
formality of registration and attestation of the deed to be completed before they are effective.
Informal agreements are verbal and do not require any formality.
Inheritance
The right of inheritance is found on the assumption that property serve as a best means of social
security. Security of food, dwelling house and means of living to the members in a joint family
was the foremost obligation of the Karta which barred from him alienating the family property
except for legal necessity and family benefit or seeking relief from distress.
This in turn conferred right of inheritance to the coparceners which included right to be
maintained out of family property and to claim partition as co-owners. Even the illegitimate
sons, who were not entitled to inherit property as heirs, were required to be maintained by their
father.
Mitakshara rules of succession regulated the law relating to inheritance applying the principle
of survivorship. The wife, widowed mother, minor sons and daughters as a child in the mother’s
womb (unborn) were entitled to inherit property as successors of the deceased and they could
not be deprived of this right by alienation or otherwise.
The death of the owner of property could result in two kinds of rights, namely:
1. Inheritable; and
2. Un-inheritable rights.
A right is inheritable if it survives its owner and it is un-inheritable if it dies with him.
Proprietary rights are inheritable and most personal rights are un-inheritable.
But there are certain exceptions to this general rule. For example, the right of action survives
the death of both parties as a general rule. Proprietary rights may be un-inheritable in case of a
lease for the life of the lessee only or in case of joint- ownership.
The rights which a dead man behind him vest in his representatives or successors. But he has
also to bear the liability of the deceased. This liability is, however, limited to the amount of

26
property which he has acquired from the deceased. Thus, inheritance is some sort of legal and
fictitious continuation of the personality of the dead man.
Succession to the property of a person may be either testate or it may be intestate i.e. by means
of will or without a will.
If the deceased had made a will, succession would take place according to the terms of the
will.
But if there is no will, then succession would take place by the operation of law which is known
as non-testamentary succession. In case there are no heirs of the deceased, his property shall
vest in the state.
The power of a person to dispose of his property by testament (will) is subject to the following
limitations:
1. Limitations of time;
2. Limitation of amount; and
3. Limitation of purpose.
Limitation of time
A person cannot dispose of his property by will in such a way as not to vest in any person for
a very long time. The property vests in some person within a prescribed time.
Limitation of Quantum Amount
In most legal systems, a testator cannot dispose of his entire estate but instead he has to leave
a certain portion of it for those to whom he owes a legal duty to support such as wife, children,
etc.
In Mohammedan law, a person cannot dispose of more than one-third of his property by will
without consent of his heirs. This provision is made so that the dependants and legal heirs of
the deceased may not be disappointed. However, this limitation does not exist in all the legal
systems, and in some systems the whole property may be willed away.
Limitation of Purpose
A person while exercising power of testamentary disposition may provide that his estate may
be used by his heirs and successors for the benefit of other persons who survive him.
However, he cannot validly leave any direction in the will which is against public interest, nor
can he withdraw the property from the use of the living persons.
For example, he cannot leave a direction in his will that his money be buried in the grave along
with his dead-body or thrown into the sea, that his estate or land shall lie waste after his death.
Such a testamentary disposition shall be wholly void.
In conclusion it may be stated that the concept of property has a special significance in
jurisprudence because the determination of proprietary rights such as ownership, title, etc. is
solely based on property.

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The concepts of ownership and possession have also originated from the conception of
property. Again, rights and duties are also closely related to property. It is for this reason that
the law relating to property has been developed as an independent branch of law in
jurisprudence. The estate or property for which there is no heir or successor, shall vest in the
State.
Historical Perspective and Constitution of India
At once the property right was considered to be a Fundamental Right under Part III of the
Constitution under Article 19(1) (f). But after 44th Constitution Amendment Act the property
right became a constitutional right. This article predominantly highlighted various
constitutional provisions relating to property. The right to property can be differentiated as
before and after 44th Constitution Amendment Act. This amendment removed Article 31 and
replaced it under 300A.
Whether acquisition of property by the Government is valid or not, in spite of destroying the
basic property right of individual is an impenetrable question which cannot be made clear. The
solution to this question is given in the study. The Constitution empowers the State to acquire
land by paying compensation to the affected family only if it is necessary for public purpose.
The issue relating to acquisition of land was dealt under Land Acquisition Act 1894 but later
on replaced by Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act 2013. This manuscript also emphasizes on compensation,
rehabilitation and resettlement to the affected families under LARR Act.
The ‘Right to property’ was a fundamental right until 1978? The fundamental Right to
property was changed to a constitutional right through the 44th Constitutional
Amendment Act, 1978. Other than this, there are a series of important provisions related
to land in the Indian constitution. In India, owning a piece of land has been associated with
the societal reputation of a person since ages. After getting freedom from the British, the
constitutional experts included provisions that guaranteed some rights related to land and
property ownership to the citizens of India. 99acres.com has compiled a list of significant
provisions related to land, which found a place in the statute book.
Right to property is a natural and inherent right of an individual. Most of the modern
constitutions except those of communist countries have recognized the right to private property.
Therefore, citizens have right to own and possess the property. The Right to property was a
fundamental right under Article 19 (1) (f) and Article 31 of the Indian constitution. This Article
guaranteed to the Indian citizens a right to acquire, hold and dispose of the property. Article 31
categorically said that no person shall be deprived of his property by the authority of law.

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 However, by the 44th Constitutional Amendment Act, 1978, the Right to property was changed
to a constitutional right, and a new Article 300A was introduced. It was done to discourage
the zamindari system and to redistribute land to the landless people of India. The amendment
expands the power of the state to appropriate property for social purpose.
There is some misapprehension on the scope of the right to property conferred under our
constitution. Right to property is so entrenched in our constitution that it is not possible without
amendment to enforce the directive principles. Article 14, 19 (5), 31, 32, 39(b) and (c), 226,
265, the gist of the said provisions may be briefly stated thus; every citizen has the individual
right to acquire, to hold and dispose of property. The exercise should be reasonable and in
accordance with the public interest. The conflict between the citizen’s right and the state power
to implement the said principles are reconciled by putting limitations both on the right and the
power. The said right is not absolute.

After the constitution of India came into force, the following agrarian reforms were introduced:
–
1. Intermediaries were abolished.
2. Ceiling was fixed on the land holdings.
3. The cultivating tenant within the ceiling secured permanent rights.
4. In some states, the share of the landlords was regulated by law.
These reforms certainly implement the Directive principle of the state policy. All these agrarian
reforms could have been introduced within the framework of the original constitution.

THE FIFTH SCHEDULE

The fifth schedule of the constitution covers regions in 10 States via Andhra Pradesh,
Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh,
Maharashtra, Odessa, and Rajasthan. These States have large indigenous and tribal population.
The provision gives them the power to administer their land and resources, in accordance with
their customs. This was a right which authorities have sought to dilute, saying the land is needed
to develop the industry to generate jobs and income in underdeveloped areas.

THE SIXTH SCHEDULE

The sixth schedule of the constitution covers the four northeastern States (Assam,
Meghalaya, Tripura and Mizoram) that have a large indigenous and tribal population and grants
them rights over their land and resources. It allows the formation of Autonomous District
Council. Recently, the Supreme Court of India has ruled that indigenous people of Meghalaya
(which is covered under the law) have full rights over the land and all its resources and that
only the indigenous people can grant permission for the mining activities.

29
 A clause under Article 371 of the Indian constitution applies to the northeastern State of
Nagaland. It protects the customary laws and practices of the indigenous Naga people. It also
protects their right to ownership and transfer of land and resources. A separate clause extends
similar protections and privileges to the aboriginal Mize people of Mizoram.
THE PESA ACT
The Panchayat (Extension to Scheduled Areas) Act (PESA), 1996, gives power over land and
other resources to village councils in the 10 Indian States covered by the fifth schedule and
recognizes their customary laws, rituals and practices. The consent of village councils is
mandatory for land acquisitions by the State, mining licenses and other development project.
POWER OF EXECUTIVE AUTHORITY TO INTERFERE WITH RIGHT TO
PROPERTY
The right to property is said to have universal recognition in almost all democratic countries.
In USA also the same principles has been reaffirmed and it can be witnessed in Youngstown
Steel and Tube Co v. Sawyer, the US Supreme Court held that the acquisition of steel mill by
President Decree in the absence of any appropriate provision under the law was said to be
unconstitutional.
The Article 300A of the Constitution permits the Executive authorities with the power to
acquire lands from the individuals when there is an express provision which authorize them to
deprive the property of that individual.
In State of West Bengal v. Vishnunarayan & Association, the State Government of West Bengal
undertook eviction of some of the tenants from its property by force, therefore the Supreme
Court held that possession can be resumed by the State Government only in the manner known
to and recognized by the law but not otherwise. This Article has a close nexus with the concept
of Eminent Domain specified in Entry 42 of List III of the Seventh Schedule of the
Constitution.
RIGHT TO PROPERTY AS A FUNDAMENTAL RIGHT
SCOPE OF ARTICLE 19 (1) (f)
Article 19(1) (f) guarantees fundamental right to property by ensuring that every citizen has a
right to acquire, hold and dispose of the property as they wish without any restriction because
property right is said to be most basic right available to every class of people without any
discrimination with respect to religion, race, caste and sex. It further provide that, if any
property has been acquired by the appropriate Government for any public purpose the said
Government is under an obligation to pay adequate compensation to the affected person for the
loss caused to them.
Though the Constitution guarantees property right to every citizen it also imposes certain
restriction under Article 19 (5). By virtue of this Article the State has a power to impose
reasonable restrictions on the right confer to the citizen under Article 19 in the interest of
general public or in order to protect the rights of Schedule Caste and Schedule Tribe.
This was the situation followed till the Forty-Forth Constitution (Amendment) Act 1978. After
this amendment, Article 19 (1) (f) was omitted and now Right to Property is not a Fundamental
Right it is merely a legal right in India.

30
In Indian Handicrafts Emporium and others v. Union of India and others, the Court held that
the right to acquire, hold and dispose of the property has ceased to be a fundamental right under
the Constitution of India, but it continues to be a legal or constitutional right that no person can
be deprived of his property save and except by and in accordance with law. Further the Supreme
Court in the matter of Chairman, Indore Visas Pradhikaran v. Pure Industrial Coke &
Chemicals Ltd. and others it was held that right of property is now considered to be not only a
constitutional right but also a human as well as a legal right.
Scope of Article 31:
Article 31 of Indian Constitution deals with “Compulsory Acquisition of Property”,
the said Article has undergone various amendments and finally repealed and replaced to Article
300A. This amendment does not have a retrospective effect so the validity of this law made
prior to the amendment can be challenged only on ground of violation of Article 14, 19 and
31(2).
In Dwarkadas Srinivas v. Sholapur Spinning and Weaving Co Ltd, the Chief Justice
has laid down certain postulates regarding acquisition under Article 31 of the Constitution, any
deprivation of the property should be:
(1) Authorized by law; (Article 31 clause 1)
(2) Necessitated by a public purpose; (Article 31 Clause 2)
(3) Subject to payment of compensation.
Article 31(2) of the Constitution provides that, a property can be acquired by the Appropriate
Government only if the property acquired is wholly used for any public purpose as may be
specified under the Act.
The State is responsible to pay compensation for the property acquired even though it is not
used for acquired purpose. So deprivation of property is enough to make the State liable to pay
compensation to the affected person but it must be a substantial deprivation. Article 31(1) and
(2) have to be read together while making acquisition. In State of West Bengal v. Subodh Gopal
Bose it made it quite clear that the obligation of paying compensation arose only where the
state action resulted in the substantial deprivation of private property of the individual. The
Supreme Court held that the abridgment of right was not amount to substantial deprivation of
the right to property within the meaning of Article 31.
The 17th amendment act, 1964 by which the state extended the scope of Article 31-A and
9th schedule protect certain agrarian reform enacted by the cereal and madras states. The word
esate in Article 31-A now included any jaggier, inam, mauf or any other right in state of kerela,
madras and also ryotwari lands.
Supreme Court in Srimathi Sitabai Devi v. State of West Bengal held that Article 31(2) i.e the
provision relating to the acquisition and requisition of land was not subject to article 19(5). In
famous R.C. Cooper’s case popularly known as Bank Nationalization case, held that the
compensation under Article 31(2) implied full monetary equivalent of the property taken from
the owner that is its market value at the date of the acquisition. The Court observed: “Art 31(2)
before and after it was amended guaranteed a right to compensation for compulsory acquisition
of property and that by giving to the owner, for compulsory acquisition of his property,

31
compensation which was illusory or determined by the application of principles which were
irrelevant. The constitutional guarantee of compensation was not complied with”.
The Constitutional (Amendment) Act 1978 came up with important twists and turns in the area
of property right. After this amendment there were only four Articles that deal with the right to
property such as Article 31A, 31B, 31C and 300A. Though these four articles were placed
under Part III as fundamental right but they do not confer the fundamental right in real scenario.
The Constitution (1st Amendment) Act, 1951 inserted Article 31A and Article 31B with
retrospective effect and Article 31C was inserted through 25th Constitution Amendment Act,
1971. The purpose of these provisions is to provide immunity with regard to restriction on
property rights.
ARTICLE 31A – RELATING TO ACQUISITION OF ESTATES
After the independence, the Government of India decided to abolish the Zamindari system in
order to acquire all the properties vested with the zamindari and rich people, and paid
compensation to them for acquisition of their property. But an important issue faced by
Government is regarding payment of compensation, they felt difficult to compensate the
zamindari from the Government treasury and there was no explicit definition or amount of
compensation specified in any statute for payment of compensation to aggrieved party.
Articles 31(2) of the Constitution contain provision for compensation but it does not have any
adjectives like “just” or “reasonable” to determine a limpid compensation. This Article has
been challenged frequently before the Court to look at the word “compensation”. The Supreme
Court finally interpreted the term compensation as “just compensation”.
Analogously, Article 14 and 19(1) (f) was also challenged on the ground pertaining to land
laws and made various land legislations invalid. The Bihar Land Reform Act 1950 was also
one among them which was held unconstitutional on violating the provision of Article 14 of
the constitution, on the ground that, it classified the zamindari in a discriminatory manner for
the purpose of compensation. Owing to this issue the Central Government came up with
amendment to insert Article 31A because there was an apprehension that the entire Zamindari
Abolition Program would have been held invalid under Article 14.
Further Article 31A provide that, the State shall acquire any estate or shall modify any right
associated with such estate even without paying any compensation but the only possibility is
that the power exercised by the State should receive the assent of the President to make it
constitutionally valid.
One of the predominant object of Article 31A (1) (a) is to promote the agrarian reform in order
to improve agricultural economy. The term “Agrarian Reform” mean a process where the
Government redistribute the agriculture land to the farmer and to frame certain reform to
develop the agriculture sectors. The Supreme Court held that, Article 31A (1) (a) does not
protect legislation which has no relation to agrarian reforms.
The Constitution through Seventeenth amendment in 1964, added second proviso to Article
31A by enlarging the scope of the term ‘estate’ and it imposes certain limitation to acquire an
agriculture property. It provides that the State cannot acquire land from any person who holds
the land for his personal cultivation if it is within the ceiling limit specified by the Government,
in spite of this, if the State wants to acquire any land they have to pay compensation which

32
shall not be less than the market value of the property. This mainly protects the small cultivators
who have small acre of land for their own cultivation.
CONSTITUTIONAL VALIDITY OF ARTICLE 31A
In Minerva Mills v. Union of India, the Court held that the whole of Article 31A is unassailable
on the basis of stare decisis, a quietus that should not allowed to be disturbed.
The Supreme Court upheld the constitutionality of clause (a) of Article 31A (1) on the test of
basic structure.
In Waman Rao and I R Coelho case, the First Amendment in which the Article 31A was
introduced and Fourth Amendment which substituted new clauses to this Article has been held
constitutional. Based on the judgment of Minerva Mills, I R Coelho and Woman Rao we shall
emphasize the constitutional validity of Article 31A of the Constitution.

ARTICLE 31B – RELATING TO VALIDATION OF ACTS AND REGULATION

SPECIFIED UNDER NINTH SCHEDULE
The main object of inserting Article 31B to the Constitution is to validate the Acts and
Regulations specified under Ninth Schedule. The Article was inserted by way of first
Constitution (Amendment) Act, 1951. The Article states that, any Act or Regulation made
under the Ninth Schedule cannot be questioned or challenged on any ground before any Court
of law that is it void or inconsistent with any provision of Fundamental Right.
ARTICLE 31C – RELATING TO SAVING OF LAWS GIVING EFFECT TO
CERTAIN DIRECTIVE PRINCIPLES
Article 31C of the Constitution gives validity to those laws that are made under the policy of
Directive Principle laid down under Part IV of the Constitution. This Article was added by 25th
Constitution (Amendment) Act 1971. The position prior to the amendment was that
Fundamental Rights were considered primacy over the Directives Principle of State Policy. But
this did not prevailed for a longer period of time and the position was changed after the said
Constitution amendment. After the amendment the position was that directive principle was
given more important than the fundamental rights. The Article also imposed more significant
on Article 39(b) [20] and 39 (c) [21] rather than Article 14, 19 and 31 of the Constitution.
The Forty-Second Constitution (Amendment) Act 1976 widens the scope of Article 31C.
In Keshvananda Bharati’s case, the validity of Article 31C of the Constitution was questioned
before the Supreme Court. The Court in this case upheld the constitution validity of the said
Article except the “declaration part “and also gave primacy to Directive Principle of State
Policy over Article 14, 19 and 32 under the Fundamental Rights.
A contravention decision regarding the validity of extended part of Article 31C was questioned
In Minerva Mills’ case, the Supreme Court in this case stuck down the validity of the extended
portion of Article 31C by holding that the Parliament has enacted the provision beyond the
power conferred to it under Article 368 of the Constitution and further held that by giving
primacy to Directive Principle than the Fundamental right would affect the basic structure of
the Constitution.

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While in Waman Rao v. Union of India, the Supreme Court upheld the constitutional validity
of Article 31C as given in the Kesavanath Barth case. But in Sanjeev Coke Manufacturing
Company v. Bharat Coking Coal Company Ltd, the Supreme Court struck down article 31C as
unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it destroys the
“basic features” of the Constitution. The goal set out in Part IV has to be achieved without
abrogating the means provided for by Part III. Thus there should be no conflict between the
directive principles and the fundamental rights. These are meant to supplement one another.
The Court has upheld that Article 31C as originally introduced by the 25th Amendment is
constitutionally valid.
In Bhim Singh v. Union of India, the Urban Land (Ceiling and Regulation) Act, 1976 was held
to be covered and protected by Article 31C, as much as the purpose of the that law was to
inhibit concentration urban land to sub serve the common good, and that said Act was intended
to achieve and implement the purpose of the Article 39(b) and (c). Though Article 31A, B and
C are under Part III of the Constitution as a Fundamental Right they do not confer Right to
property as a Fundamental Right to every citizen of India.
INTERNATIONAL CONVENTION ON RIGHT TO PROPERTY
Right to property is one of the Human Right conferred to every person. The property right is
recognized at the international perspective under Universal Declaration of Human Rights.
Article 17 of Universal Declaration of Human Rights, states that:
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
It is very difficult to understand the property right in international perspective neither
International Covenant on Civil and Political Rights nor International Covenant on Economic,
Social and Cultural Rights has not included any controversy regarding the definition and
interpretation of property right.
LAND ACQUISITION
Land Acquisition is a process by which the Central Government or the State Government
acquires the private property of an individual for any public purpose. The acquired property
should be used only for public purpose as may be specified under the law. The individual from
whom the property has been acquired have to be compensated for such acquisition along with
a proper rehabilitation and resettlement. The process of land acquisition was governed by Land
Acquisition Act, 1894. In Somavanti v. State of Punjab, the Supreme Court held that object of
the Land Acquisition Act was to empower the government to acquire land only for public
purposes or for a company. Where it is for a company the provisions of part VII should be
complied with, only after the government is satisfied that the purpose of the company is directly
connected with or for the construction of some work which is likely to prove directly useful to
the public land, could be acquired.
But later on the said Act was replaced by Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement 2013. At present this Act is governing all
the procedure for acquisition of land.

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CONSTITUTIONAL VALIDITY OF LAND ACQUISITION:
The Right to Property became a Constitutional Right after the Forty-Forth Constitution
(Amendment) Act 1978. This amendment removed Article 31 and replaced it under Article
300A. The Constitution assures that “No person shall be deprived of his property saved by the
authority of law”.
The 44th Constitution Amendment came up with two important implications:
1. After this amendment Right to Property was considered as a Constitutional Right and
it is no more a Fundamental Right. Any legislation challenging the constitutional right
to property can be made only before the High Court and the issue cannot be challenged
before the Supreme Court directly under Article 32 of the Constitution.
2. The State is under an obligation to pay compensation for the land acquired by the
Government for any public purpose, but this position has been changed after 44th amendment
by deleting Article 31of the Constitution and the State is no longer liable to compensate the
affected family for such acquisition.
The Constitutional Right under Article 300A is not the basic feature or structure of the
Constitution. In State of Maharashtra v. Chandrabhan, the Supreme held that, after the 44th
amendment property right is ceased to be a Fundamental Right under the Constitution and
considered as legal as well as human rights.
EMINENT DOMAIN AND POLICE POWERS
The relationship between Articles 19 and 31 and the Fourth Amendment (1955)
Parliamentary Assembly Debates on the Constitution (First Amendment) Bill 1951,
Provisional Parliament, in any social system that recognizes private property, the State restricts
property rights in the exercise of powers inherent in the State’s sovereignty. In countries that
have a written Constitution, these restrictions are often expressly embodied in the constitutional
text. Broadly, these powers are classified as police powers, eminent domain and taxation.
Distinguishing between these powers becomes important because even though State action in
the pursuance of each of them may involve restrictions on existing property rights, the
obligations on part of the State in each instance are different. Police power has been defined as
the power of promoting the public welfare by restraining and regulating the use of liberty and
property. In this chapter, we will confine our discussion of police powers insofar as they
restrain or regulate the use of property.
The power of eminent domain, in the broadest sense, may be understood simply as the
power of the sovereign to take property for public welfare, without the owner’s consent. When
the State acquires property in the exercise of its eminent domain powers, the economic loss
inflicted on the private owner is accompanied by a corresponding economic gain to testate or
to someone nominated by the State. Here, the State does not attempt to regulate these of the
owner, but, on the contrary, replaces him and deals with the property as if the State itself were
the owner of the property. Where the State regulates property in exercise of its police powers,
the State does not make any economic gain to itself or its nominee, although, as a consequence
of the regulation an economic loss is inflicted on the owner. The State deals with the property
not as the owner, but as a sovereign having power over the owner and his property, directing
the owner to observe the State’s instructions in the use and enjoyment of his property. In India,

35
the key concepts used in Articles 19, 31(1) and (2) were ‘restriction’, ‘deprivation’, and
‘acquisition’ respectively. The Supreme Court’s interpretation of these terms involved two
main questions. The first question concerned the interpretation of the terms ‘deprivation ‘in
clause (1) and ‘acquisition’ in clause (2) of Article 31 to determine whether they concerned the
same or two different exercises of State power. The second question concerned the interplay
of Article 31 with Article 19 (1) (f).
ARTICLE 31(1) (2) POLICE POWER – EMINENT DOMINANT
However, another interpretation championed by Satyr CJ was that Article 31, clauses
(1) and (2) should be read together as stating three requirements for acquisitions pursuant to
the exercise of the State’s powers of eminent domain. Article 31(1) stated the general principle
that there shall be no taking or deprivation of property without a valid law, whereas Article31
(2) elaborated upon this principle by stipulating the requirements of a valid law, including the
existence of a public purpose and the provision of compensation. The adoption of one or the
other interpretation would differentially impact the extent of protection of private property
under the Constitution. Adopting the first interpretation meant the State could take actions short
of acquisition or taking possession of the property that substantially deprived the owner of the
benefits of ownership without the requirements of public purpose and just compensation
stipulated in Article 31(2). Under Article 31(1), the law authorising such deprivation was also
not required to be ‘reasonable’ as contained in the requirement for reasonable’ restrictions
under Article 19(1) (f).Curiously, none of the judges found a basis for the exercise of the State’s
police powers in Article 31(5) (2) (b)(ii) even though it is the most likely encapsulation of the
same .
Satya CJ took the view that Articles 19 and 31 were mutually exclusive. Article 19 merely
referred to a citizen’s capacity to own property. This provision had no reference to the property
that was already owned by him, which was dealt with in Article 31. In other words, Article 19
forbade the State from denying particular individuals or classes the right to own property or to
carry on business, but did not protect a citizen’s interest in a particular piece of property from
State interference. Satyr CJ noted that since Article 31, which was headed by the caption ‘right
to property’, already protected property rights of citizens as well as non- citizens, whereas
Article 19(1) (f) only protected the rights of citizens, any other interpretation would make
Article 19(1) (f) redundant.
But if Articles19(1)(f) and (5) were understood as dealing only with the capacity to acquire,
hold and dispose of property in general, this distinction made sense. In that case, it would be
justifiable to exclude aliens from such capacity, as had been done in several countries for the
benefit of nationals, particularly with respect to rights in land. This interpretation finds some
support from the Constituent Assembly Debates, particularly the statement of TT
Krishnamachari, later Finance Minister. But even on Krishnamachari’s statement, the right did
not merely protect the capacity to acquire, hold and dispose of property but some concrete
though basic property entitlements. In contrast, other judges on the Court including SR Das
and Jagannadhadas JJ took the view that Article 19(1) (f) applied both to abstract and concrete
property rights. Jagannadhadas Construe Article 19(1) (f) and (5) as not having reference to
concrete property rights and restrictions on them would enable the legislature to impose
unreasonable restrictions on the enjoyment of concrete property (except where such restrictions
can be brought within the scope of article 31(2) by some process of construction.

36
Right to Property in Constitution of India, Article 300-A

When independent India first adopted its Constitution, the Right to Property, as enshrined in
Article 19(1)(f), was a fundamental right and therefore placed at a high pedestal. Article
19(1)(f) had to be read along with Article 31 of the Constitution in order to prevent the
Government from depriving a person of his property without the “authority of the law” and
further that such law should provide “for compensation for the property taken possession of or
acquired and either fixes the amount of compensation, or specifies the principles on which, and
the manner in which, the compensation is to be determined and give”.
Both Article 19(1)(f) and Article 31 proved to be a substantial headache to the Indian
Government, as these provisions made it very difficult for the Government to proceed with its
socialist agenda of land reforms and nationalization schemes, as the Government simply could
not afford to pay reasonable compensation for the lands and corporations acquired by it.
Initially the Congress Party which was in power at the Centre aimed at maintaining the legality
of its action by introducing new provisions such as Article 31A,B & C along with Schedule IX
to the Constitution to protect, from judicial review, all those legislations which offended the
fundamental rights enshrined in Part III of the Constitution. At last count there were at least
285 legislations, most of them land reform legislations, locked up under the safety of Schedule
IX.
A year later in 1978, the Janata Party passed the 44th Amendment to the Constitution of India.
As a part of these Amendments both Article 19(1)(f) & Article 31 were deleted from the
Constitution. Article 31 however was only party deleted in the sense that Article 31(1) which
provided that “no person shall be deprived of his property, save by the authority of the law”
was transferred out of the fundamental rights chapter and shifted to Chapter IV of Part XII, in
the form of Article 300A.
Article 300A now reads as follows: Article 300A. Persons not to be deprived of property
save by authority of law.- No person shall be deprived of his property save by authority
of law.
This amendment had two immediate implications:
(i) The Right to Property would now be a Constitutional Right and not a Fundamental Right.
A legislation violating the constitutional right to property could now be challenged only in
High Courts and not directly in the Supreme Court.

(ii)Due to the deletion of Article 31 the Government was no longer under an obligation to
compensate persons whose land had been acquired as per a law passed by Parliament.
As of now, it is Proposition
(ii) i.e. deprivation of property without compensation is still legally tenable especially in light
of the Supreme Court’s ruling, in the Maneka Gandhi case, which held that each and every
provision of the Constitution had to be interpreted in a just, fair and reasonable manner.
Therefore any law depriving a person of his property shall have to do so in a reasonable manner.
It could be argued that the only reasonable manner to deprive a person of his property would

37
be to offer him, reasonable compensation for the same. This discussion however is not
completely relevant for the purpose of this post. The only relevant point is the fact that under
the Constitution no person can be deprived of their property without the authority of law.
The two relevant concepts that now require to be examined are (i) ‘property‘ & (ii) ‘authority
by law‘.
C. ‘Property’ as understood in Article 300A: The obvious first question is as to whether or
not ‘intellectual property’ such as ‘clinical trial data’ would fall within the definition of
‘property’ as understood in Article 300A. There seems to be enough authority to support the
proposition that ‘property’ as understood in Article 300A is wider than just ‘immovable
property’. One such authority in the context of ‘intellectual property rights’ is the judgment of
the Supreme Court in the case of Entertainment Network India Ltd. (ENIL) v. Super Cassette
Industries Ltd. (SCIL). In pertinent part the Court held the following:
The ownership of any copyright like ownership of any other property must be considered
having regard to the principles contained in Article 19(1)(g) read with Article 300A of the
Constitution, besides, the human rights on property.
The judgment goes on further to say that:
But the right of property is no longer a fundamental right. It will be subject to reasonable
restrictions. In terms of Article 300A of the Constitution, it may be subject to the conditions
laid down therein, namely, it may be wholly or in part acquired in public interest and on
payment of reasonable compensation.
The fact that the Supreme Court recognizes ‘copyright’ to fall within Article 300A is indicative
that even ‘clinical trial data’, collected after extensive experimenting, should in all likelihood
fall within the definition of ‘property’ as understood in Article 300A.
D. ‘Authority by law’ as understood in Article 300A: The term ‘law’ as defined in Article
300A is understood to mean only a legislation or a statutory rule or order. The term ‘law’ as
understood by Article 300A will not include executive fiats. The source of the ‘law’ depriving
a person of his property has to be necessarily traced, through a statute, to the legislature. The
question therefore is whether the relevant provisions of the Drugs and Cosmetics Rules, 1945
qualify as ‘law’ for the purpose of Article 300A or whether the same would be struck down as
having no basis in the Act:
(i) The relevant provisions of the Drugs & Cosmetics Rules, 1945: I’ve always been slightly
intrigued by the weak regulatory architecture of the Drugs and Cosmetics Act, 1940 since it
has left the bulk of the regulation, especially essential policies pertaining to clinical trials etc.,
to the vagaries of delegated legislation i.e. the Drugs & Cosmetics Rules, 1945. The relevant
provisions on the nature of data that is needed to be submitted for regulatory approval is laid
out in the following Rules and Schedules:
(a) Rule 122 E – Definition of ‘new drug’: Any drug which has not been used within the
territory of India for any significant extent under the conditions prescribed by the Act shall be
deemed to be a ‘new drug’ for a period of 4 years after its approval by the relevant authority,
which is now the DCGI/CDSCO.

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(b) Schedule Y, Appendix 1 to the D & C Rules, 1945 (approval for new drugs) – These
provisions prescribe the data that is to be submitted to the DCGI along with the application to
manufacture a ‘new drug’. The clinical data that is required is as follows:
(i)Phase 1 & Phase 2 – Clinical Trial studies;
(ii) Phase III – Confirmatory Clinical Trial studies, which involves large scale testing on human
beings (These studies would include mandatory Phase III trials on at least 100 Indian patients
in India);
These requirements however are significantly diluted by the first proviso to Rule 122(B)(3)
and Rule 122(A)(2), which states that local clinical trials need not be conducted if in case the
Licensing Authority so decides to waive the requirement in light of tests carried out in foreign
countries.
(c) Schedule Y, Appendix 1A (Approval for generic drugs) – These provisions prescribe the
data that is to be submitted to the DCGI along with the application to manufacture a ‘new drug’
already approved for manufacture in India. Not surprisingly these provisions do not require the
submission of any ‘clinical studies’ – the only requirement is that the application be
accompanied by bio-equivalence studies along with sub-acute animal toxicity studies for
intravenous infusions and injectables. Bio-equivalence studies are a relatively inexpensive
affair and are aimed at establishing that the biological efficacy and safety of the generic drug
in relation to the innovator drug. These studies save generic manufacturers the cost of executing
expensive clinical trials and are in fact the primary reason for the low cost of generic drugs.
The long and short of this provision is that the approving authority of the Central Government,
in effect depends, on clinical trial data submitted by the innovator company for the first
approval of its new drug product. In a sense the Government ‘acquires’ the data for a ‘public
purpose’ in a manner which directly affects the business of the innovator company.
Most importantly however this dependence on the innovator’s data is not mandated by the Act
but instead by the Rules, which are delegated legislation.
(ii) Do ‘the relevant provisions’ of the D & C Rules, 1945, fall within the definition of
‘law’ as understood in Article 300A?
There is enough authority to support the proposition that Statutory Rules & Orders would fall
within the definition of ‘law’ as understood in the context of Article 300A. For example an
Order made under the procedure laid down by the Land Acquisition Act would qualify as ‘law’
for the purpose of Article 300A since it has been promulgated under the procedure prescribed
by the Act. The ‘relevant provisions’ of the D & C Rules, 1945, that have been discussed above,
may not qualify as ‘law’ since such delegated legislation, in my opinon, is beyond the scope of
the Act.
As discussed by a Seven Judge Bench of the Supreme Court in the In Re Delhi Laws case,
delegated legislation is permissible, to the extent that it does not allow for the delegation of an
essential legislative function i.e. a question of policy cannot be delegated. The decision to
‘acquire’ valuable property, i.e. expensive clinical data, for a public purpose is an essential
function which can be carried out only through an Act of the legislature. At the time when the
United States of America decided to curtail the data exclusivity period of innovators drugs
from perpetuity to 5 years it had to do so through a legislative action which was known as
the Hatch-Waxman Act and not through FDA regulations.

39
Moreover each and every rule that is formulated in the guise of delegated legislation has to find
its source in the Parent Statute. In the present case I have, either rightly or wrongly, not be been
able to locate the source of these ‘relevant provisions’ in the Drugs and Cosmetics Act. While
it is true that the Act provides the Central Government with a mandate to regulate the
manufacture of drugs, it does not provide the Government with the power to deprive a person
of his property.
Types of Intellectual Property
Rights in Re Propria in Immaterial Things (Intellectual Property)
Proprietary rights are both in relation to material and immaterial things. Material things are
physical objects and all other things which may be subject-matter of a right are immaterial
things. They are various immaterial products of human skill and labour. These immaterial
forms of property are as follows:
Intellectual rights are a type of incorporeal property. The recognition and protection of this
kind of incorporeal property has been of recent origin. The justification in accepting these types
of property lies in the fact that what a man produces belongs to him and the immaterial product
or a person’s intellect may be valuable as any other material property. Examples of this type of
property are patents, literary, artistic, musical and dramatic copyrights and commercial
goodwill etc.
The various types of intellectual property are:
Patents
The subject-matter of a patent right is an invention such as the idea of a new process, instrument
or manufacture. The person by whose skill or labour the invention or a new process or
manufacture is ‘introduced’ has the exclusive right of patent in it. This is granted to the inventor
by the state.
The Indian Patents & Designs Act provides that a person who has registered a patent gets the
exclusive right to make use or sell the patented invention for a period of fourteen years, and
any person who, whether with or without the knowledge of the existence of the patent right,
infringes the same, may be restrained by injunction and if he knowingly infringes the patents,
shall be liable for damages.
Copyright
The subject-matter of the right is the literary expression of facts or thought. This right may be
available to writers, painters, engravers, photographers, musical and dramatic personnel for
their outstanding work.
When such a person does some creative work by utilising his intellect, skill and labour, he is
entitled to exclusive copyright, which is immaterial form of property. In short, copyright may
be literary copyright or artistic copyright or musical and dramatic copyright.
Commercial Goodwill
Yet another form of immaterial property is commercial goodwill. The goodwill of commercial
business is a valuable right acquired by the owner by his labour and skill. He has exclusive

40
right of use and profit from the business and anyone who seeks to make use of it by falsely
representing to the public that he is himself carrying on the business in question, shall be
violating this right.
Intellectual Property in General
The division of property as movable and immovable, if it is tangible, was known in Roman law
and has been adopted by modern Civil Codes. This kind of classification is also provided under
art.1226 of the Civil Code. However, “as a result of the industrial revolution and the rapid
development made in the fields of science, technology and culture, new kinds of property came
into existence”. New rights and properties like patents, copyright and industrial designs, which
came to be known as intellectual property rights (IPRs) received attention due to their unique
characteristics.
Intellectual property is so broad that it has many aspects. It stands for groupings of rights which
individually constitute distinct rights. However, its conception differs from time and it to time.
It is subject to various influences. The change in information technology, market reality
(globalization) and generality have affected the contents of intellectual property. For instance,
in olden days-because of religion creation of life, say plants or animals were not protected.
Thus, defining IP is difficult as its conception changes. It is diverse, challenging and has
application in own day today life.
IP is a section of law which protects creations of the mind, and deals with intellectual creations.
Is it a workable definition? It is also commonly said that one cannot patent or copyright ideas.
Intellectual property, as a concept, “was originally designed to cover ownership of literary and
artistic works, inventions (patents) and trademarks”. What is protected in intellectual property
is the form of the work, the invention, the relationship between a symbol and a business.
However, the concept of intellectual property now covers patents, trademarks, literary and
artistic works, designs and models, trade names, neighboring rights, plant production rights,
topographies of semi conductor products, databases, when protected by a sui generis right,
unfair competition, geographical indications, trade secrets, etc.
Those types of intellectual property have been characterized as “pieces of information which
can be incorporated in tangible objects at the same time in an unlimited number of copies at
different time and at different locations anywhere in the world”. In other words, intellectual
property rights are intangible in nature, different from the objects they are embodied in. The
property right is not in those copies but in the information which creates in them.
In today’s world, the international dimension of intellectual property is of ever increasing
importance for three compelling reasons. First, the composition of world trade is changing.
Currently, commerce in intellectual property has become an even greater component of
trade between nations. The value of information products has been enhanced greatly by the
new technologies of the semi-conductor chip, computer software and biotechnology. Second,
the world commerce has become even more interdependent, establishing a need for
international cooperation. No longer can a single country impose its economic will on the rest
of the world. Accordingly, countries have recognized this interdependence and have called for
a broadening of international agreements/arrangements involving intellectual property. Third,
new reprographic and information storage technologies permit unauthorized copying to take
place faster and more efficiently than ever, undermining the creator’s work. There is a general

41
feeling in the developed countries that much of this sort of copying takes place in the third
world due to the relaxation of legal standards. All these factors have prompted the international
community as a whole to accord due recognition to intellectual property and intellectual
property regime.
Thus, the above reasons widen the scope of intellectual property rights. Among the bundles of
intellectual property rights, copyright that deals with the protection of literary, artistic and
scientific works is one.

The Concept of Intellectual Property

Intellectual property, very broadly, means the legal property which results from intellectual
activity in the industrial, scientific and artistic fields. Countries have laws to protect intellectual
property for two main reasons. One is to give statutory expression to the moral and economic
rights of creators in their creations and such rights of the public in access to those creations.
The second is to promote, as a deliberate act of government policy, creativity and the
dissemination and application of its results and to encourage fair trading which would
contribute to economic and social development.
Generally speaking, IP law aims at safeguarding creators and other producers of intellectual
goods and services by granting them certain time- limited rights to control the use made of
those productions. These rights do not apply to the physical object in which the creation may
be embodied but instead to the intellectual creation as such. IP is traditionally divided into two
branches: “industrial property and copyright”. The convention establishing the World
Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967 (Art.
2(viii) provides that
“intellectual property shall include rights relating to:
1) literary, artistic and scientific works:
2) performances of performing artists, phonograms and broadcasts;
3) inventions in all fields of human behaviour;
4) scientific discoveries;
5) industrial designs;
6) trademarks, service marks, and commercial names and designations;
7) protection against unfair competition and all other rights resulting from intellectual activity
in industrial scientific, literary or artistic fields”.
The areas mentioned under (1) belong to the copyright branch of intellectual property. The
areas mentioned in (2) are usually called “neighboring rights”, that is, rights neighboring on
copyright. The areas mentioned under 3, 5 and 6 constitute the industrial property branch of
IP. The areas mentioned may also be considered as belonging to that branch.
The expression industrial property covers inventions and industrial designs. Simply stated,
inventions are new solutions to technical problems, and industrial designs are aesthetic

42
creations determining the appearance of industrial products. In addition, industrial property
includes trademarks, service marks, commercial names and designations, including indications
of source and appellations of origin, and protection against unfair competition. Hence the
aspect of intellectual creations -although existent -is less prominent, but what counts here is
that the object of industrial property typically consists of signs transmitting information to
consumers, in particular, as regards products and services offered on the market, and that the
protection is directed against unauthorized use of such signs which is likely to mislead
consumers and misleading practices in general.

Analysis of WIPO definition of Intellectual property.

Intellectual Property
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic
works; designs; and symbols, names and images used in commerce.
IP is protected in law by, for example, patents, copyright and trademarks, which enable people
to earn recognition or financial benefit from what they invent or create. By striking the right
balance between the interests of innovators and the wider public interest, the IP system aims to
foster an environment in which creativity and innovation can flourish.

CONCEPT OF PROPERTY VIS-À-VIS INTELLECTUAL PROPERTY

Human Beings are distinguished from animals by the intellectual capability endowed on them
by the Almighty. The Human Beings have thus elevated themselves to the present ‘Civilized
State’ solely on account of exercise of their intellectual capabilities.
The property which comes into existence by application of human intellect is termed as
Intellectual Property. It is product of
1) Intellectual Capabilities and
2) Labour
Intellectual Property relates to information which can be incorporated in tangible objects and
reproduced in different locations. For Example, Patents, Designs, Trade Marks and Copyright.
The rights accrued on the owner of such property (Intellectual Property) are termed as
Intellectual Property Rights (IPR).
As stated above, Intellectual Property (IP) refers to the creations of the human mind, like
inventions, literary and artistic works, and symbols, names, images and designs used in
commerce. It can be divided into two categories:-
1. Industrial property, which includes inventions (patents), trademarks, industrial designs, and
geographic indications of source; and
2. Copyright, which includes literary and artistic works such as novels, poems and plays, films,
musical works, artistic works, such as, drawings, paintings, photographs and sculptures, and

43
architectural designs. Rights related to copyright include those of performing artists in their
performances, producers of phonograms in their recordings, and those of broadcasters in their
radio and television programs.
Intellectual property rights protect the interests of creators by giving them property rights over
their creations.
The most noticeable distinction between Intellectual Property and other forms of properties is
that:-
Intellectual Property is intangible, that is, it cannot be defined or identified by its own physical
parameters. It must be expressed in some discernible way to be protectable. Generally, it
encompasses four separate and distinct types of intangible properties, namely
a) Patent
b) Trademark
c) Copyright and
d) Trade Secret,
which collectively are referred to as “Intellectual Property.”
However, the scope and definition of Intellectual Property is constantly evolving with the
inclusion of newer forms under the ambit of Intellectual Property. In recent times,
a) Geographical Indications
b) Protection of plant varieties
c) Protection for semi-conductors and integrated circuits, and
d) Undisclosed Information
Intellectual property is a property which comes into existence by application of human intellect.
It is referred as as “Bauddhik sampada “ in the Indian Context. Bauddhik means related to
buddhi or intellect and word sampada means property . When word buddhi gets combined with
sampada it amounts to bauddhik Sampada.
The person who is owner of Intellectual property is provided bundle of rights related to the
property which has come into existence by application of his intellect. These rights collectively
are termed as intellectual Property rights.
Intellectual Property is a term which refers to and indicates a number of distinct types of
creations of the mind for which law confers certain property rights upon its creator. The
jurisprudence developed on the concept of ‘Property’ has made it abundantly clear that property
does not just encompass tangible things, like a house, a car, furniture, currency, investment etc
and that these assets are not the only kind of property which are subject matter of protection by
law. There are many other forms of intangible properties which are known with the term
‘intellectual property’ that have been recognised by the law and thus granted protection against
any kind of infringement by a person other than its rightful owner or a person authorised by
such rightful owner.

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Under the Intellectual Property Law, the owners of such intangible property have been granted
and conferred with certain exclusive rights over their respective intangible assets/works, these
include, musical, literary and artistic works; discoveries and inventions; and words, phrases,
symbols, and designs, etc. Patent, Trademark, Copyright, and Designs rights are the broad four
main categories of intellectual properties, though the domain of such assets is expanding with
the passage of time.
Exclusive rights are provided to the owners as a reward of the intellect, time, money, skill etc.
they used for creation of intellectual property.
Patents
Necessity is mother of invention and inventions are need of hour. The person who invents
something having industrial application is granted Patent on the invention. Intellectual Property
right related to patents provides bundle of rights related to the invention including the right to
use, assign etc. Patents are conferred in order to grant protection to certain new products,
processes, apparatus, etc. provided the invention involved in it is non-obvious in nature in light
of what already exists or has already been done before, it is not in public domain, and has not
been disclosed anywhere in the world at the time of the application for grant of patent. The
invention involved must have a utility i.e. a practical purpose. Patents are territory specific and
thus are registrable nationally. However, the Patents granted by European Patent Office is
regarded as a ‘bundle’ of national Patents. Also, there is not yet any single EU-wide patent
system which exists till date. Registration of patent provides its owner the right to prevent
anyone else(other than the licensed user) from making, using, selling, or importing the
invention for 20 years from the date of grant of patent. Patents are enforced by court
proceedings.
Trade Marks
A symbol in the form of a logo, words, shapes, jingles etc. which is employed to provide the
product(s) or service(s) with a recognizable identity to distinguish them from the competing
products is called as a Trade Mark. Trade Marks help in protecting the distinctive identification
which make up the marketing identity of a brand. They can be registered by its founder/user
nationally as well as internationally, thus enabling him to use such mark on his products along
with the symbol ® which reflects the registration status of the symbol. Trade mark rights can
be enforced through court proceedings wherein relief in the form of injunction and/or damages
are available. In cases wherein there is an element of counterfeit, the state authorities like the
Customs Department, the Police, and even the Consumer Protection Agencies can be
approached to assist and provide relief in such cases. An unregistrable trade mark however is
symbolised by the use of the letters ‘TM’to be used along with the mark. To enforce one’s right
in respect of such unregistered trade mark in the court of law in case the competitor uses the
same or a similar mark to trade his products in the same or a similar field, one has to prove that
he/she has put to use such mark prior to the other person against whom the proceedings are
brought about.
Copyright
Copyright is used to protect works like original creative works, published articles, sound
recordings, films, and broadcasts. The right exists independent of the medium on which the
work is recorded, and therefore buying a copy thereof does not confer a right to copy the work.

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Limited copying in the form of photocopying, scanning, and downloading without permission
of the copyright owner is however permissible but only for research activities. Further,
publication of excerpts or quotes from the work requires a due acknowledgement of the source
from which such excerpts or quotes have been taken. However, a mere idea is outside the
domain of the protection of copyright and thus a mere idea cannot be copyrighted, i.e., only the
expression of the idea.
Copyright also does not exist for a title, slogan or a phrase, although all these can be registered
as a trade mark. Copyright extends to the internet medium as well like the matter published
through web pages which are protected by the copyright law, such that permission is required
before copying the matter contained therein or even to insert a hyperlink to it.
Unlike many other Intellectual Property Rights, Copyright is not necessarily registrable and it
arises automatically upon creation of the work itself. Further, Copyright can be enforced
through the court of law.
Theories of Intellectual Property Rights
The term “intellectual property rights law” is a very broad term and it now includes and refers
to a cluster of legal doctrines that regulate the uses of different sorts of ideas and insignia.
i) The law of copyright protects different forms of expression which are original, including
those contained in novels, movies, musical compositions, and computer software programs.
ii) Patent law on the other hand protects different kinds of inventions as also some discoveries
provided it satisfies the essential conditions for a Patent.
iii) The Trademark law is framed to protect ‘words’, ‘symbols’ etc. that help the consumers
identify and distinguish the goods and services of different manufacturers and service
providers.
iv) The Trade-secrets law which is a fairly new branch of Intellectual Property Rights law is
intended to protect commercially valuable information for instance, soft-drink formulas,
confidential marketing strategies, etc. that the companies would like to conceal and protect
from their competitors.
The revenues of many businesses now depend substantially on the Intellectual Property that
they possess and the steps that they adopt to protect them. Increasing number legal
professionals are also specializing in this particular branch of law. Further, the legislatures
around the world are also busy in framing and revising their intellectual property laws. As a
result of these emerging trends, scholarly interest in this particular field of law has risen
dramatically in the recent years.
Law reviews and journals as also those related to the subject of economics and philosophy, are
increasingly focusing on including articles deploying “theories” of intellectual property.
There are many writings which have commented upon the differences and the contest amongst
the four
a) Utilitarian Theory
Utilitarian Theory has been advocated by economist such as Benthem and Mill and its primary
focus is upon attainment of greatest good for greatest number. It says that the any policy made

46
and implemented by any authority should have power of ensuring greatest good for greatest
number. Greatest good here refers to utmost welfare and greatest number refers to masses.
The utilitarian guideline says that:-
a) Lawmakers’ beacon when shaping property rights should be the “maximization of net social
welfare”. This is essentially the utilitarian thought.
b) In respect of the subject of intellectual property, the school of thought, requires that the
lawmakers must strike an optimal balance between, the power of exclusive rights to stimulate
the creation of inventions and works of art on the one hand, and, the partially offsetting
tendency of such rights to curtail widespread public enjoyment of those creations, on the other.
c) The danger expressed in respect of this theory is that the creators of such products will be
unable to recoup their “costs of expression” i.e. the time and effort devoted by them to writing
or composing and the costs of negotiating with publishers or record companies, since copyists
are likely to undercut them and persons bear a very low cost of production and thus they can
offer identical products to the consumers at a very low price resulting in a loss to the creators
of the products.
d) If this happens it will disincentivise the creators from making any socially valuable
intellectual product.
e) This can however be avoided by allocating to the creators (for limited times) the exclusive
right to make copies of their creations. The creators of works that are valuable to the consumers
will be empowered to charge prices (for allowing anyone to access to their works) which shall
be substantially greater than they could in a competitive market. This rationale put forward by
the utilitarian thinkers has been used to shape specific doctrines within the field.
b) Natural Right Theory / Labour Theory ( Locke’s Theory)
The Natural Right Theory emanates from the proposition that “a person who labors upon
resources that are either un-owned or “held in common” has a natural property right to the
fruits of his or her efforts and that the state has a duty to respect and enforce that natural right”.
This idea has been elaborated in the writings of John Locke and is also applicable to the subject
of intellectual property, wherein the raw materials in the form of facts and concepts do seem in
some sense to be “held in common” and where labor contributes substantially to the value of
the finished product. Lockean property entitlements
a) Right to use without harm
b) Right to transfer the property
c) Right of exclusive usage of the property
c) Personality Theory
Personality theory finding place in the writings of Kant and Hegel is that private property rights
are crucial to the satisfaction of some fundamental human needs. The law makers thus must
create and allocate entitlements to resources in a way that best enables people to satisfy such
needs. From this perspective, Intellectual Property Rights may be justified either on the ground

47
that they shield from appropriation or modification artifacts through which authors and artists
have expressed their “wills” (an activity thought central to “personhood”).
Justin Hughes, taking inspiration from Hegel’s Philosophy of Right, laid down following
guidelines concerning the proper shape of an Intellectual Property regime (See Hughes,
“Philosophy of Intellectual Property”):
(a) We should be more willing to accord legal protection to the fruits of highly expressive
intellectual activities, such as the writing of novels, than to the fruits of less expressive
activities, such as genetic research.
(b) Because a person’s “persona” -- his “public image, including his physical features,
mannerisms, and history” -- is an important “receptacle for personality,” it deserves generous
legal protection, despite the fact that ordinarily it does not result from labor.
(c) Authors and inventors should be permitted to earn respect, honor, admiration, and money
from the public by selling or giving away copies of their works, but should not be permitted to
surrender their right to prevent others from mutilating or misattributing their works.
d) Achievement of just and attractive culture theory
The fourth approach is based on the proposition that property rights, in general, and intellectual
property rights, in particular, can and should be shaped with the objective to help achieve a just
and attractive culture.
The approach has some similarities with the utilitarianism, but does not agree to deploy a vision
for a society richer than the conceptions of “social welfare” deployed by utilitarians.
An appropriate illustration can be found in Neil Netanel’s essay, titled as “Copyright and a
Democratic Civil Society.” Netanel begins by describing a picture of “a robust, participatory,
and pluralist civil society,” collaborating with “unions, churches, political and social
movements, civic and neighborhood associations, schools of thought, and educational
institutions.” In such a world described, all persons would enjoy some degree of financial
independence coupled with considerable responsibility in shaping their local social and
economic environments. Such a civil society is vital, Netanel claims, to the perpetuation of
democratic political institutions. Such a society shall not, however, emerge spontaneously; it
has to be nourished by the Government.

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UNIT –III:

Classification of Intellectual Property-Industrial Property and Literary Property

Intellectual property (IP) refers to the creations of the human mind like inventions, literary and
artistic works, and symbols, names, images and designs used in commerce. Intellectual
property is divided into two categories:
a) Industrial property, which includes inventions (patents), trademarks, industrial designs, and
geographic indications of source; and
b) Copyright, which includes literary and artistic works such as novels, poems and plays, films,
musical works, artistic works such as drawings, paintings, photographs and sculptures, and
architectural designs. Rights related to copyright include those of performing artists in their
performances, producers of phonograms in their recordings, and those of broadcasters in their
radio and television programs. Intellectual property rights protect the interests of creators by
giving them property rights over their creations.
The most noticeable difference between intellectual property and other forms of property,
however, is that intellectual property is intangible, that is, it cannot be defined or identified by
its own physical parameters. It must be expressed in some discernible way to be protectable.
Generally, it encompasses four separate and distinct types of intangible property namely —
patents, trademarks, copyrights, and trade secrets, which collectively are referred to as
“intellectual property.” However, the scope and definition of intellectual property is constantly
evolving with the inclusion of newer forms under the gambit of intellectual property. In recent
times, geographical indications, protection of plant varieties, protection for semi-conductors
and integrated circuits, and undisclosed information have been brought under the umbrella of
intellectual property.

Different forms of IP
Related Rights
Related rights are the rights that have their special subject matter, which is mainly related to
copyright. With regard to the similar subject matter, they are also called the rights related to
copyright or simply related rights. With regard to the fact that they are close to copyright they
are also called the rights neighbouring to copyright.
1. Right of performers
2. Right of producers of phonograms
3. Right of film producers
4. Right of broadcasting organizations
5. Right of publishers in their editions
6. Right of producers of databases
TYPES OF NEIGHBOURING RIGHTS

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As previously mentioned, neighbouring rights have three categories. They are performer’s
right, recording rights and broadcasting rights.
Performers Rights are particularly designed to protect performers like the musicians and actors,
in their performances against unauthorised recording (rendering them illegal) or live
transmission of their live performances and to guarantee adequate control over and
remuneration for the exploitation of recordings of their performances. Consent is required from
all performers that are involved irrespective of their position, principal, lead or a supporting
cast. Once such a consent is given, it cannot be withdrawn. By law, where a sound recording
of a performance has been made with the consent of a performer, the performer’s consent is
further required for any communication to the public, copying or issuing of that sound
recording to public. Such rights can be enforced by the representatives of the performer after
his/her death.
Broadcasting, has proven to be most efficient and the quickest way to disseminate information
to the public at large. ‘Broadcasting Rights’ are those rights which have been duly conferred
to broadcasting organizations such as the television, radio or other telecasting programmes
known as ‘rights of broadcasting organizations. A live performance by a singer is the original
performance and a person from the audience records it and puts the audio on internet. Does this
amount to broadcaster’s reproduction rights? If yes, it will give great rights to broadcasting
organisations to censor information under the pretext of protecting copyright in the work.
As the producer of an event, the owner of the Copyright is the also the owner of all the rights
and revenue that are the output of organisation, creation and development of the event. This
obviously includes media and broadcasting rights related thereto. Only the Copyright owner
has the right to grant to others, the right to broadcast, communicate, make available and/or
authorize the transmission, communication, broadcasting or making available to the public, the
event so produced.
INTERNATIONAL TREATIES PROTECTING NEIGHBOURING RIGHTS
International Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organisations, famously known as the Rome Convention is one of the most
prominent conventions at the international level. It was adopted in 1961. It is jointly managed
and directed by the United Nations Educational, Scientific and Cultural Organization,
(UNESCO), the International Labour Organization (ILO) and WIPO.

Copyright, along with neighbouring rights form a part of the TRIPS (Trade Related Aspects of
Intellectual Property Rights) Agreement, 1994, which came into force on 1 January 1995. A
membership of this Convention ensures that copyright holders in the respective member
nations get recognition of their rights within the territory of other member nations.

India has accepted many international obligations with the intention of protecting copyrights.
India is a member state of the following conventions:

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 • Berne Convention, 1886 for the protection of Literary and Artistic Works since 1 April
1928
• Universal Copyright Convention (UCC), under the auspices of UNESCO, since 20
October, 1957
• Convention for the Protection of Producers of Phonograms Against Unauthorized
Duplication of their Phonograms, since 12 February 1975
• Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties
and Additional Protocol, since 31 October 1983
• WIPO Performances and Phonograms Treaty, adopted by the Diplomatic Conference
on December 20, 1996
• WIPO Copyright Treaty, adopted by the Diplomatic Conference on December 20, 1996
NEIGHBOURING RIGHTS IN OTHER NATIONS
The Dutch Neighbouring Rights Act, (Wet op de Naburige Rechten) grants private and
exclusive exploitation rights to performing artists, like musicians and actors, broadcasters and
recording companies. Under this Act, performing artists entitled to moral rights too and no
formality has to be undergone to acquire neighbouring rightsas neighbouring rights are
acquired through either performing, recording or broadcasting.
In Canada, there exists the Neighbouring Rights Collective of Canada (NRCC) which was
established in the year 1997. This body is designated by the Copyright Board in order to
administer reasonable compensation. It is a collective umbrella which collects a proportionof
advertising revenue from commercial radio stations that lay across Canada.
The recognition of Neighbouring Rights in the United States does not go as back in the history
as the Copyright regime but ever since 1976, neighbouring rights have become a significant
feature of Copyright protection. Strong movement to balance competing interests and freedom
to share information has been in existence in the United States of America for sometime now.
A rigorous protection of Copyright and neighbouring rights is governed by The Digital
Millennium Copyright Act, 1998.

In Japan too, there have been recent developments and the duration of neighbouring rights
expires posts fifty years from the year when the publishing was made or when the first fixation
of sounds was made. In case, there has not been any publishing within a period of fifty years,
following the first fixation of sounds, for phonograms. Protection of neighbouring rights starts
on the following date, and expires at the end of a period of fifty years from the beginning of
the year following the date (except Phonograms). In February 1996, the Japanese government
announced that it will amend its Copyright Law with the inetion of extending neighbouring
rights to fifty years in case of sound recording.

NEIGHBOURING RIGHTS IN THE INFO-TECH REGIME

It is very undefined whether recent concepts fit into existing neighbouring right system or
whether there should be made amendments to existing copyright statute. The broadcasting
organization’s entrepreneurship efforts is one of the most classical cases on the needs of

51
broadcaster’s rights. An example would be a cricket match played in a country and the live
coverage of that is sent instantaneously via a communications satellite to the authorized
broadcaster in another country; a third-party cable operator in the second country intercepts the
satellite signal and uses it himself, probably even adding his own advertising.
Analogue technologies are the origin of the concept of neighbouring rights and it faces a
substantial change it its scope due to rapid developments in information technology. This
clearly implies that neighbouring eights enforcement has to become modified in accordance
with technological developments. Specific innards and scope of neighbouring rights under the
current Copyright regime in India well be amended with rapid growth of entertainment business
in India and substantial developments in information technologies
Copyright
Copyrights protect original works of authorship, such as literary works, music, dramatic works,
pantomimes and choreographic works, sculptural, pictorial, and graphic works, sound
recordings, artistic works, architectural works, and computer software. With copyright
protection, the holder has the exclusive rights to modify, distribute, perform, create, display,
and copy the work.
Section 14 of the Act defines the term Copyright as to mean the exclusive right to do or
authorise the doing of the following acts in respect of a work or any substantial part thereof,
namely
In the case of literary, dramatic or musical work (except computer programme):
(i) reproducing the work in any material form which includes storing of it in any medium by
electronic means;
(ii) issuing copies of the work to the public which are not already in circulation;
(iii) performing the work in public or communicating it to the public;
(iv) making any cinematograph film or sound recording in respect of the work; making any
translation or adaptation of the work.
Further any of the above mentioned acts in relation to work can be done in the case of
translation or adaptation of the work.
In the case of a computer programme:
(i) to do any of the acts specified in respect of a literary, dramatic or musical work; and
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of
the computer programme. However, such commercial rental does not apply in respect of
computer programmes where the programme itself is not the essential object of the rental.
In the case of an artistic work:
(i) reproducing the work in any material form including depiction in three dimensions of a two
dimensional work or in two dimensions of a three dimensional work;
(ii) communicating the work to the public;
(iii) issuing copies of work to the public which are not already in existence;

52
(iv) including work in any cinematograph film;
making adaptation of the work, and to do any of the above acts in relation to an adaptation of
the work.
In the case of cinematograph film and sound recording:
(i) making a copy of the film including a photograph of any image or making any other sound
recording embodying it;
(ii) selling or giving on hire or offer for sale or hire any copy of the film/sound recording even
if such copy has been sold or given on hire on earlier occasions; and
(iii) communicating the film/sound recording to the public.
In the case of a sound recording:
• To make any other sound recording embodying it
• To sell or give on hire, or offer for sale or hire, any copy of the sound recording
• To communicate the sound recording to the public.
The main objective of the Act is to give protection to the owner of the copyright from the
dishonest manufacturers, who try to confuse public and make them believe that the infringed
products are the products of the owner. Further, it wants to discourage the dishonest
manufacturers from enchasing the goodwill of the owner of the copyright, who has established
itself in the market with its own efforts [Hawkins Cookers Ltd. v. Magicook Appliances Co.,
00(2002) DLT698].
Unlike the case with patents, copyright protects the expressions and not the ideas. There is no
copyright in an idea. In M/s Mishra Bandhu Karyalaya & Others v. Shivaratanlal Koshal AIR
1970 MP 261, it has been held that the laws of copyright do not protect ideas, but they deal
with the particular expression of ideas.
In order to qualify under copyright laws, the work must be fixed in a tangible medium of
expression, such as words on a piece of paper or music notes written on a sheet. A copyright
exists from the moment the work gets created, so registration is required to provide proper
protection to one’s work and also to prevent the chances of its misuse and unauthorized use.
Copyright in India is governed by Copyright Act, 1957. This Act has been amended several
times to keep pace with the changing times. As per this Act, copyright grants author’s lifetime
coverage plus 60 years after death under certain classes whereas in other classes it is 60 years
in toto. Copyright and related rights on cultural goods, products and services, arise from
individual or collective creativity. All original intellectual creations expressed in a reproducible
form will be connected as” works eligible for copyright protections”. Copyright laws
distinguish between different classes of works such as literary, artistic, dramatic, musical
works; and sound recordings; and cinematograph films. The work is protected irrespective of
the quality thereof and also when it may have very little in common with accepted forms of
literature or art.
Copyright protection also includes novel rights which involve the right to claim authorship of
a work, and the right to oppose changes to it that could harm the creator’s reputation (Moral

53
Right). The creator or the owner of the copyright in a work can enforce his right
administratively and in the courts by inspection of premises for evidence of production or
possession of illegally made “pirated” goods related to protected works. The owner may obtain
court orders to stop such activities, as well as seek damages for loss of financial rewards and
recognition.
A vital field which gets copyright protection is the computer industry. The Copyright Act,
1957, was amended in 1984 and computer programming was included with the definition of
“literary work.’ The new definition of” computer programme” introduced in 1994, means a set
of instructions expressed in works, codes or in any other form, including a machine readable
medium, capable of causing a computer to perform a particular task or achieve a particular
result.
Copyright Protection Enforcement
Civil remedies for infringement of copyright.—
(1) Where copyright in any work has been infringed, the owner of the copyright shall, except
as otherwise provided by this Act, be entitled to all such remedies by way of
injunction,damages, accounts and otherwise as are or may be conferred by law for the
infringement of a right:
Provided that if the defendant proves that at the date of the infringement he was not aware and
had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall
not be entitled to any remedy other than an injunction in respect of the infringement and a
decree for the whole or part of the profits made by the defendant by the sale of the infringing
copies as the court may in the circumstances deem reasonable.
(2) Where, in the case of a literary, dramatic, musical or artistic work, or, subject to the
provisions of sub-section (3) of section 13, a cinematograph film or sound recording, a name
purporting to be that of the author, or the publisher,as the case may be, of that work, appears
on copies of the work as published, or, in the case of an artistic work, appeared on the work
when it was made, the person whose name so appears or appeared shall, in any proceeding in
respect of infringement of copyright in such work, be presumed, unless the contrary is proved,
to be the author or the publisher of the work, as the case may be.
(3) The costs of all parties in any proceedings in respect of the infringement of copyright shall
be in the discretion of the court.
Protection of separate rights.—
Subject to the provisions of this Act, where the several rights comprising the copyright in any
work are owned by different persons, the owner of any such right shall, to the extent of that
right,been titled to the remedies provided by this Act and may individually enforce such right
by means of any suit, action or other proceeding without making the owner of any other right
a party to such suit, action or proceeding. ( For details refer lesson on Copyright)
The greatest fear and challenges to the copyright industry is the piracy of works whether, books,
musical works, films, television programmes or computer software or computer database. The
special nature of infringement of copyrights in computer programmes has again been taken
note of by the Copyright (Amendment) Act, 1994 by inserting a new section 63 B. The new

54
section provides that any person who knowingly makes use on a computer of an infringed copy
of a computer programme will be punishable with imprisonment for a term of not less than
seven days, which may extend to three years and with a fine of not less than ` 50,000/- and
which may extend to `2,00,000/-. Proviso to section 63 B, however, provides that where
computer programme has not been used for gain or in the course of trade or business, the court
may at its discretion and for reasons mentioned in the judgment not impose any sentence of
imprisonment and impose only fine up to ` 50,000/-.
The Copyright (Amendment) Act, 1999 makes it free for purchaser of a gadget/equipment to
sell it onwards if the item being transacted is not the main item covered under the Copyright
Act. This means computer software which is built in the integral part of a gadget/equipment
can be freely transacted without permission of copyright owner. This amendment also ensures
fair dealing of ‘broadcasting’ gaining popularity with the growth of the Internet. With this
amendment India has updated the Act to meet the concerns of the copyright industries mainly
consisting of Book Industry, Music Industry, Film and Television Industry, Computer Industry
and Database Industry.
The Copyright Act, 1957 amended in 2012 with the object of making certain changes for
clarity, to remove operational difficulties and also to address certain newer issues that have
emerged in the context of digital technologies and the Internet. Moreover, the main object to
amendments the Act is that in the knowledge society in which we live today, it is imperative
to encourage creativity for promotion of culture of enterprise and innovation so that creative
people realize their potential and it is necessary to keep pace with the challenges for a fast
growing knowledge and modern society.

Patents
A patent grants proprietary rights on an invention, allowing the patent holder to exclude others
from making, selling, or using the invention. Inventions allow many businesses to be successful
because they develop new or better processes or products that offer competitive advantage on
the marketplace. One could get a patent by filing a patent application with the Patent Office in
India.
Patent, in general parlance means, a monopoly given to the inventor on his invention to
commercial use and exploit that invention in the market, to the exclusion of other, for a certain
period. As per Section 2(1) (j) of the Patents Act, 1970, “invention” includes any new and
useful;
• art, process, method or manner of manufacture;
• machine, apparatus or other article;
• substance produced by manufacture, and includes any new and useful improvement of any of
them, and an alleged invention;
The definition of the word “Invention” in the Patents Act, 1970 includes the new product as
well as new process. Therefore, a patent can be applied for the “Product” as well as “Process”
which is new, involving inventive step and capable of industrial application can be patented in
India.

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The invention will not be considered new if it has been disclosed to the public in India or
anywhere else in the world by a written or oral description or by use or in any other way before
the filing date of the patent application. The information appearing in magazines, technical
journals, books etc, will also constitute the prior knowledge. If the invention is already a part
of the state of the art, a patent cannot be granted. Examples of such disclosure are displaying
of products in exhibitions, trade fairs, etc. explaining its working, and similar disclosures in an
article or a publication.
It is important to note that any invention which falls into the following categories is not
patentable:
(a) frivolous,
(b) obvious,
(c) contrary to well established natural laws,
(d) contrary to law,
(e) morality,
(f) injurious to public health,
(g) a mere discovery of a scientific principle,
(h) the formulation of an abstract theory,
(i) a mere discovery of any new property or new use for a known substance or process, machine
or apparatus,
(j) a substance obtained by a mere admixture resulting only in the aggregation of the properties
of the components thereof or a process for producing such substance,
(k) a mere arrangement or rearrangement or duplication of known devices,
(l) a method of agriculture or horticulture, and
(m) inventions relating to atomic energy or the inventions which are known or used by any
other person, or used or sold to any person in India or outside India.
The application for the grant of patent can be made by either the inventor or by the assignee or
legal representative of the inventor. In India, the term of the patent is for 20 years. The patent
is renewed every year from the date of patent.
Enforcement of Patent Rights:-
It is pertinent to note that the patent infringement proceedings can only be initiated after grant
of patent in India but may include a claim retrospectively from the date of publication of the
application for grant of the patent. Infringement of a patent consists of the unauthorized
making, importing, using, offering for sale or selling any patented invention within the India.
Under the (Indian) Patents Act, 1970 only a civil action can be initiated in a Court of Law. Like
trademarks, the relief which a court may usually grant in a suit for infringement of patent
includes permanent and interim injunction, damages or account of profits, delivery of the
infringing goods for destruction and cost of the legal proceedings.

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Trade names
Over a period of time, new terms have been added to the legal dictionary of intellectual property
rights so as to widen its scope. One such addition is the term “Trade Name”. Generally, a Trade
Name means the name of the organizations or individuals which is used in business activities
to distinguish the business entity bearing such a name from other business entities engaging in
the same field. For e.g., the cola giant Pepsi is incorporated as “PepsiCo” which is its Trade
Name.
According to WIPO, a Trade Name is generally required to satisfy the following criteria:
1. It should consist of a proper name, except where it has been widely known as a result of use;
2. It is not identical with or confusingly similar to another person’s Trade Name prior used in
the same field and locality of business; and;
3. It is not identical with or confusingly similar to another person’s trademark or a geographical
indication having been protected prior to the date such Trade Name is used.
Trade Name v. Trade Mark
In today’s world, we find certain confusion related to the use of the words ‘Trade Name’ and
‘Trade Mark’. While people have been using them interchangeably, both the words are
different and there is a separate set of evidences required for protecting each of them. Now, let
us see how both are different.
To simply put it, the formal name of a business is called its Trade Name. A “Trade Name” is
the official name under which a company does business. It is also known as a “doing business
as” name, assumed name, or fictitious name such as PepsiCo, Kirloskar Group of Companies,
etc. On the other hand, “Trade Mark” is the name the business uses to market its products and
services. A Trade Mark is much more than a name and can also be in the form of symbols,
logos, slogans or sound.
A Trade Name does not afford any brand name protection or provide you with unlimited rights
for the use of that name. However, registering a Trade Name is an important step for providing
protection to the same. A Trade Mark affords protection to your brand name. In most of the
cases, for a company, the Trade Name often becomes its Trade Mark. For instance Google is a
Trade Name. The company uses the name “Google” as a trade mark on its products/services to
distinguish its products/services from other providers. Registration offers additional protection
to the Trade Mark.
An important reason for the business houses to distinguish between Trade Names and
Trademarks is that if a corporate entity starts to use its Trade Name to identify products and
services, then Trade Name is functioning as a Trademark, and abundant caution is required to
be taken in such circumstances so that the “new Trade Mark (i.e. the Trade Name)” does not
infringe on any existing Trade Marks or Well-known marks.
Cases on Trade Name Infringement
1. Kala Niketan Case – Plaintiff carried on business of dealing in and selling sarees under the
Trade Name ‘Kala Niketan’. The Plaintiff had given wide publicity to its Trade Name ‘Kala
Niketan’ through newspapers, radio, boarding and other media, and there was huge market for
the sarees of the Plaintiff. The Defendant being aware of the popularity of the Plaintiff’s name,

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adopted the same Trade Name and started business in sarees. The Defendant was served with
a notice in December 1977 to stop using the Trade Name ‘Kala Niketan’ but the Defendant did
not stop the usage. Further, the Defendant published a caution notice in the Indian Express,
dated May 13, 1978 claiming that Defendant firm was the proprietor of the name ‘Kala
Niketan’ in respect of trade of all kinds of Sarees and textiles. In the subsequent case, the Court
found that the adoption of the Trade Name ‘Kala Niketan’ by the Defendant was to ride on the
popularity of the Plaintiff’s Trade Name and granted a decree for permanent injunction
restraining the Defendant from dealing in Sarees and other textile goods in the name of ‘Kala
Niketan’ or any other identical or deceptively similar Trade Name.
2. Atlas Case – The Plaintiff, M/s. Atlas Cycle (Haryana) Limited, a public limited company,
filed a suit for permanent injunction restraining the Defendants from using Plaintiff’s registered
Trade Mark ‘Atlas’ as Defendant’s Trade Mark or as part of its corporate name. The Defendant
introduced the Trade Mark ‘House of Atlas’ for its bicycles in such a way that the word ‘Atlas’
appeared in a conspicuous fashion whereas words “House of” was depicted in a smaller font
which gave a dominant exposure to the word ‘Atlas’. The Court in this case found the
Defendant used the said Trade Mark to deceive and confuse the public as to the origin of goods
and therefore held against the Defendant.
However the court did not restrain the Defendant from using the said Trade Name. The court
instead went against the Plaintiff’s reasoning that the Plaintiff had raised this issue after 7 years
of incorporation of the Defendant Company and that if an injunction is granted, it will cause
serious prejudice to the Defendant. The Court held that restraining the Defendant from using
its corporate name at this juncture, which it has nurtured for the last more than seven years,
would result in a “civil death” for the Defendant.
3. Kirloskar Case – “Kirloskar” is a surname in India. The Plaintiffs were using “Kirloskar”as
part of their Trade Name and Trade Marksince 1888 when they started bicycle repair business.
Over time, the founders of the company expanded their business and incorporated several
companies and all these companies were doing business under the umbrella of the“Kirloskar
Group of Companies” which had continuously used the Trade Name and Trade Mark
“KIRLOSKAR” over several years.
In this case, the Appellants want to trade on the reputation of the ‘Kirloskar Group of
Companies’ and also on the goodwill of the Trade Mark ‘Kirloskar’. The case was referred to
the District Court of Pune who passed an interim injunction which restrained the defendants
from using the word “Kirloskar” as a part of their corporate name. The defendants then
appealed to the Bombay High Court against the order of the District Court Pune. The Bombay
High Court, after considering many case laws, both national and international, held that a
company can be prevented from using another’s Trade Name which has acquired reputation
and goodwill. Accordingly, the Court rejected the defendants’ appeals and affirmed the order
of the District Judge.
Protection of Unregistered Trade Names in India: Passing Off Action
The reputation or the goodwill of the business is often attached to the trade name which is
protected by courts. As law puts it – “no man is entitled to carry on his business in such a way
as to represent that it is the business of another, or is in any way connected to the business of
another.”

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The law of passing off applies whenever there is the prospect of confusion between two names
or marks and get-up or where there is the prospect of confusion of identity through the
unauthorised use of similar names or marks or get-up. The main function of Passing Off is to
act as a remedy for unregistered Trade Names in cases of deception or confusion.
In a passing off action, the registration of trade name or a similar mark is irrelevant. Here, the
priority in adoption and use of name or the trade mark is superior to priority in registration.
Generally, protection against passing off of goods/services is granted where the parties are
engaged in the trade of the same or similar products or closely related products and services.
The essential elements to avail the remedy of passing off are:
1. Goodwill: Plaintiff is required to establish before court his goodwill or reputation
2. Misrepresentation: Plaintiff needs to demonstrate a misrepresentation by the defendant
3. Damage: Plaintiff to demonstrate that he suffered or he is likely to suffer damages by reason
of defendant’s misrepresentation
Selecting Trade Name – A Cautious Approach
Misconception as to the legal nature of Trade Names can have drastic implications, in particular
for smaller enterprises.
It has sometimes been wrongly believed that a Trade Name confers a proprietary right in that
name to its holder akin to the protection offered by registration of a Trade Mark. Based on this
misconception, the sole proprietor or company promoters may forgo Trade Mark registration
which they would have otherwise sought. Generally, one can find such confusion more among
the SMEs (Small & Medium Scale Enterprises) and small companies. The aforementioned
entities need to clearly understand that without registration as a Trade Mark, a Trade Name is
unprotected.
Another situation is that, entities or individuals operating the Trade Names may be unaware
that the use of their business or company name could infringe someone else’s Trade Name or
any registered Trade Mark. If this Trade Name infringes someone else’s registered Trade Mark
or a famous Trade Name, the business or company concerned may be required to forgo use of
their Trade Name. This can cause loss of reputation in the market. Further, business or company
will have to re-brand which inevitably involves considerable expenses. Further, the business or
company may even be liable to pay compensation to the party whose rights have been infringed.
Any entity or business adopting a Trade Name has to primarily check whether the said name
infringes another’s Trade Mark or a well-known mark or a popular Trade Name at the very
inception rather than getting fingers burned at a later stage.

Trademarks
A trademark is a word, phrase, symbol, or design that distinguishes the source of products
(trademarks) or services (service marks) of one business from its competitors. In order to
qualify for protection, the mark must be distinctive. For example, the Nike “swoosh” design
identifies athletic footwear made by Nike.
Although rights in trademarks are acquired by use, registration with the Trademark Office
under the Trademark Act, 1999 allows you to more easily enforce those rights. Before
registering your trademark, conduct a search of federal and state databases to make sure a

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similar trademark doesn’t already exist. This trademark search can help you reduce the amount
of time and money you could spend on using a mark that is already registered and trademarked.
The Trade Marks Act 1999 (“TM Act”) provides, inter alia, for registration of marks, filing of
multi class applications, the renewable term of registration of a trademark as ten years as well
as recognition of the concept of well-known marks, etc. It is pertinent to note that the letter “R”
in a circle i.e. ® with a trademark can only be used after the registration of the trademark under
the TM Act.
Trademarks mean any words, symbols, logos, slogans, product packaging or design that
identify the goods or services from a particular source. As per the definition provided under
Section 2 (zb) of the TM Act, “trade mark” means a mark capable of being represented
graphically and which is capable of distinguishing the goods or services of one person from
those of others and may include shape of goods, their packaging and combination of colors.
The definition of the trademark provided under the TM Act is wide enough to include non-
conventional marks like color marks, sound marks, etc. As per the definition provided under
Section 2 (m) of the TM Act, “mark” includes a device, brand, heading, label, ticket, name,
signature, word, letter, numeral, shape of goods, packaging or combination of colors or any
combination thereof.
Accordingly, any mark used business entity in the trade or business in any form, for
distinguishing itself from other, can qualify as trademark. It is quite significant to note that the
Indian judiciary has been proactive in the protection of trademarks, and it has extended the
protection under the trademarks law to Domain Names as demonstrated in landmark cases of
Tata Sons Ltd. v Manu Kosuri & Ors. [90 (2001) DLT 659] and Yahoo Inc. v Akash Arora
[1999 PTC 201].
Points to consider while adopting a Trademark
Any business entity needs to be cautious in selecting its trade name, brands, logos, packaging
for products, domain names and any other mark which it proposes to use. One must do a proper
due diligence before adopting a trademark. The trademarks can be broadly classified into
following five categories:
• Generic
• Descriptive
• Suggestive
• Arbitrary
• Invented/Coined
Explanation :-
1. Generic marks means using the name of the product for the product, like “Salt” for salt.
2. Descriptive marks means the mark describing the characteristic of the products, like using
the mark “Fair” for the fairness creams.

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3. Suggestive marks means the mark suggesting the characteristic of the products, like
“Habitat” for home furnishings products.
4. Arbitrary marks means mark which exist in popular vocabulary, but have no logical
relationship to the goods or services for which they are used, like “Blackberry” for phones.
5. The invented/ coined marks means coining a new word which has no dictionary meaning,
like “Adidas”.
The strongest marks, are thus the easiest to protect, are invented or arbitrary marks. The weaker
marks are descriptive or suggestive marks which are very hard to protect. The weakest marks
are generic marks which can never function as trademarks.
India follows the NICE Classification of Goods and Services for the purpose of registration of
trademarks. The NICE Classification groups goods and services into 45 classes (classes 1-34
include goods and classes 35-45 include services). The NICE Classification is recognized in
majority of the countries and makes applying for trademarks internationally a streamlined
process. Every business entity, seeking to register trademark for a good or service, has to
choose from the appropriate class, out of the 45 classes.
While adopting any mark, the business entity should also keep in mind and ensure that the mark
is not being used by any other person in India or abroad, especially if the mark is well-known.
It is important to note that India recognizes the concept of the “Well-known Trademark” and
the principle of “Trans-border Reputation”.
Examples of well-known trademarks are Google, Tata, Yahoo, Pepsi, Reliance, etc. Further,
under the principle of “Trans-border Reputation”, India has afforded protection to trademarks
like Apple, Gillette, Whirlpool, Volvo, which despite having no physical presence in India, are
protected on the basis of their trans-border reputation in India.
Enforcement of trademarks right
Trademarks can be protected under the statutory law, i.e., under the Trade Marks Act and the
common law. If a person is using a similar mark for similar or related goods or services or is
using a well-known mark, the rightful owner of trademark can file a suit against that person for
violation of the IP rights irrespective of the fact that the trademark is registered or not.
Registration of a trademark is not a pre-requisite in order to sustain a civil or criminal action
against violation of trademarks in India. The prior adoption and use of the trademark is of
utmost importance under trademark laws.
The relief which a Court may usually grant in a suit for infringement or passing off includes
permanent and interim injunction, damages or account of profits, delivery of the infringing
goods for destruction and cost of the legal proceedings. It is pertinent to note that infringement
of a trademark is also a cognizable offence and criminal proceedings can also be initiated
against the infringers.

Trade Secrets
It may be confidential business information that provides competitive edge to an enterprise.
Usually these are manufacturing or industrial secrets and commercial secrets. These include

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sales methods, distribution methods, consumer profiles, and advertising strategies, lists of
suppliers and clients, and manufacturing processes. Contrary to patents, trade secrets are
protected without registration.
Trade secret may be in the form of a
a) formula
b) practice
c) process
d) design
e) instrument
f) pattern
g) commercial methods
h) complilation of information not generally known
A trade secret can be protected for an unlimited period of time but a substantial element of
secrecy must exist so that, except by the use of improper means, there would be difficulty in
acquiring the information. Considering the vast availability of traditional knowledge in the
country, the protection under this will be very crucial in reaping benefits from such type of
knowledge.
Industrial Designs
In view of considerable progress made in the field of science and technology, a need was felt
to provide more efficient legal system for the protection of industrial designs in order to ensure
effective protection to registered designs, and to encourage design activity to promote the
design element in an article of production. In this backdrop, The Designs Act of 1911 has been
replaced by the Designs Act, 2000. The Designs Act, 2000 has been enacted essentially to
balance these interests and to ensure that the law does not unnecessarily extend protection
beyond what is necessary to create the required incentive for design activity while removing
impediments to the free use of available designs.
The new Act complies with the requirements of TRIPS and hence is directly relevant for
international trade.
According to section 2 (d) of the Designs Act, 2000
“Design” means features of shape, pattern, configuration, ornaments or composition of colors
or lines which is applied in three dimensional or two dimensional or in both the forms using
any of the process whether manual, chemical, mechanical, separate or combined which in the
finished article appeal to or judged wholly by the eye; but does not include any mode or
principle of construction or anything which is in substance a mere mechanical device.
Industrial Design law deals with the aesthetics or the original design of an industrial product.
An industrial product usually contains elements of both art and craft, that is to say artistic as
well as functional elements.

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The design law excludes from its purview the functioning features of an article and grants
protection only to those which have an aesthetic appeal. For example, the design of a teacup
must have a hollow receptacle for holding tea and a handle to hold the cup. These are functional
features that cannot be registered. But a fancy shape or ornamentation on it would be
registrable. Similarly, a table, for example, would have a flat surface on which other objects
can be placed. This is its functional element. But its shape, colour or the way it is supported by
legs or otherwise, are all elements of design or artistic elements and therefore, registrable if
unique and novel.
Today, industrial design has become an integral part of consumer culture where rival articles
compete for consumer’s attention. It has become important, therefore, to grant adequate
protection to an original industrial design. It is not always easy to separate aesthetics of a
finished article from its function. Law, however, requires that it is only the aesthetics or the
design element which can be registered and protected. For example, while designing furniture
whether for export or otherwise, when one copies designs from a catalogue, one has to ascertain
that somebody else does not have a design right in that particular design.
Particularly, while exporting furniture, it is necessary to be sure that the design of the furniture
is not registered either as a patent or design in the country of export. Otherwise, the exporter
may get involved in unnecessary litigation and may face claims for damages. Conversely, if
furniture of ethnic design is being exported, and the design is an original design complying
with the requirements of the definition of ‘design’ under the Designs Act, it would be
worthwhile having it registered in the country to which the product is being exported so that
others may not imitate it and deprive the inventor of that design of the commercial benefits of
his design.
The salient features of the Design Act, 2000 are as under:
(a) Enlarging the scope of definition of the terms “article”, “design” and introduction of
definition of “original”.
(b) Amplifying the scope of “prior publication”.
(c) Introduction of provision for delegation of powers of the Controller to other officers and
stipulating statutory duties of examiners.
(d) Provision of identification of non-registrable designs.
(e) Provision for substitution of applicant before registration of a design.
(f) Substitution of Indian classification by internationally followed system of classification.
(g) Provision for inclusion of a register to be maintained on computer as a Register of Designs.
(h) Provision for restoration of lapsed designs.
(i) Provisions for appeal against orders of the Controller before the High Court instead of
Central Government.
(j) Revoking of period of secrecy of two years of a registered design.
(k) Providing for compulsory registration of any document for transfer of right in the registered
design.

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(l) Introduction of additional grounds in cancellation proceedings and provision for initiating
the cancellation proceedings before the Controller in place of High Court.
(m) Enhancement of quantum of penalty imposed for infringement of a registered design.
(n) Provision for grounds of cancellation to be taken as defense in the infringement proceedings
to be in any court not below the Court of District Judge.
(o) Enhancing initial period of registration from 5 to 10 years, to be followed by a further
extension of five years.
(p) Provision for allowance of priority to other convention countries and countries belonging
to the group of countries or inter-governmental organizations apart from United Kingdom and
other Commonwealth Countries.
(q) Provision for avoidance of certain restrictive conditions for the control of anticompetitive
practices in contractual licenses.
Geographical Indications
Geographical Indication (GI) is a tag or sign used on products for indicating their specific place
of origin. It specifies the characteristics, qualities and reputation assumed to be in the product
because of its linkage to a particular geographical location. Any sign can be used as a GI only
when it has the ability of identifying a product to be originating from a particular place. It can
be used for following mentioned things –
a) Agricultural products e.g. Alphonso Mango, Nagpur oranges
b) Food stuffs e.g. Roquefort cheese is the unique blue cheese from france
c) Wine and spirits e.g. Tequilla made from blue agave plant growing in the city of Tequila,
Mexico
d) Handicrafts e.g. Mahdubani Paintings, Kanchipuram Sarees
e) Industrial products e.g. Darjeeling tea.
Until recently, Geographical indications were not registrable in India and in the absence of
statutory protection, Indian geographical indications had been misused by persons outside India
to indicate goods not originating from the named locality in India. Patenting turmeric, neem
and basmati are the instances which drew a lot of attention towards this aspect of the Intellectual
property. Mention should be made that under the Agreement on Trade Related Aspects of
Intellectual Property Rights (TRIPS), there is no obligation for other countries to extend
reciprocal protection unless a geographical indication is protected in the country of its origin.
India did not have such a specific law governing geographical indications of goods which could
adequately protect the interest of producers of such goods.
To cover up such situations it became necessary to have a comprehensive legislation for
registration and for providing adequate protection to geographical indications and accordingly
the Parliament has passed a legislation, namely, the Geographical indication of Goods
(Registration and Protection) Act, 1999. The legislation is administered through the
Geographical Indication Registry under the overall charge of the Controller General of Patents,
Designs and Trade Marks.

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The salient features of this legislation are as under:
(a) Provision of definition of several important terms like “geographical indication”, “goods”,
“producers”, “packages”, “registered proprietor”, “authorized user” etc.
(b) Provision for the maintenance of a Register of Geographical Indications in two parts-Part
A and Part B and use of computers etc. for maintenance of such Register. While Part A will
contain all registered geographical indications, Part B will contain particulars of registered
authorized users.
(c) Registration of geographical indications of goods in specified classes.
(d) Prohibition of registration of certain geographical indications.
(e) Provisions for framing of rules by Central Government for filing of application, its contents
and matters relating to substantive examination of geographical indication applications.
(f) Compulsory advertisement of all accepted geographical indication applications and for
inviting objections.
(g) Registration of authorized users of registered geographical indications and providing
provisions for taking infringement action either by a registered proprietor or an authorized user.
(h) Provisions for higher level of protection for notified goods.
(i) Prohibition of assignment etc. of a geographical indication as it is public property.
(j) Prohibition of registration of geographical indication as a trademark.
(k) Appeal against Registrar’s decision would be to the Intellectual Property Board established
under the Trade Mark legislation.
(l) Provision relating to offences and penalties.
(m) Provision detailing the effects of registration and the rights conferred by registration.
(n) Provision for reciprocity powers of the registrar, maintenance of Index, protection of
homonymous geographical indications etc.

UNIT-IV:
Emerging forms of IP
Intellectual Property has seen numerous modifications. Different Intellectual Properties have
come about to exist, which some would say is the impact of IP Maximalism and some would
regard them as a matter of necessity of changing times. Where software is expressly ousted
from patent protection, CRIs come to their rescue. New types of intellectual property rights are
on the rise, for example, Data Exclusivity, Orphan Drug Exclusivity, Standard Essential
Patents, etc. India lags behind in several of these emerging trends, partly because of the lack of
legislature in several issues and partly because of its mixed priorities. The legal framework
needs to substantiate these issues more coherently while maintaining India’s pro-public-benefit
approach towards IP.
Invention in software

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While identifying what kind of protection is to be granted to an IP, one needs to identify what
is the “intellectual” in that property, is it an invention or a literary work? Software i.e.
computer programme has found its mode of protection in the Indian Copyright Act, 1957.
S. 2(ffc) defines a computer programme as “a set of instructions expressed in words, codes,
schemes or in any other form, including a machine-readable medium, capable of causing a
computer to perform a particular task or achieve a particular result”. These areas such
included in “literary work” defined in S.2 (o) of the Act, “literary work includes computer
programmes, tables, and compilations including computer literary databases.”
On the other hand, the Indian Patents Act, 1970 expressly excludes computer programmes
from the ambit of patentable subject- matter, vis-a-vis including it in Section 3 what are not
inventions, S. 3 (k) a mathematical or business method or a computer programs per se or
algorithms; and S.3 (m) a mere scheme or rule or method of performing mental act or method
of playing the game; expressly excludes computer programs from the patentable subject matter.
However, the Patent Office prescribes guidelines to outline various regulations and
explanations regarding the patentability of computer-related inventions (CRIs), last updated on
30 June 2017.
The legislative intent to attach the suffix per se to a computer programme is evident by the
following view expressed by the Joint Parliamentary Committee while introducing the Patents
(Amendment) Act, 2002:
“In the new proposed clause (k) the words “per se” have been inserted. This change has been
proposed because sometimes the computer programme may include certain other things,
ancillary thereto or development thereon. The intention herein not to reject them for the grant
of the patent if they are inventions. However, computer programmes as such are not intended
to be granted patent. This amendment has been proposed to clarify the purpose”.
Example:
1. In re Accenture Global Service GMBH Vs. The Assistant Controller Of Patents &
Designs relates to Indian patent application number 1398/DELNP/2003, which is now a
granted patent as patent number 256171, whose present legal status at the patent office database
is, “Enforce with Due date of next renewal as 21/02/2017”. This patent application was initially
refused for patent registration by the patent office under the provisions of Section 3(k) of the
Indian patents act.
However, the patent applicant appealed before the IPAB and as per the Controller’s decision,
it was held that the instant invention as claimed is not software per se but, a system is claimed
which is having the improvement in web services and software. Accordingly, it was held that
the invention since not falling in the category of section 3(k), viz software per se, the
corresponding objection was waived and the patent was granted.
Emerging new IPs
SEPs and FRAND Licensing
A patent that protects technology essential to a standard is called a standard-essential patent.
A standard is a document that sets out requirements for a specific item, material, component,

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system or service, or describes in detail a particular method or procedure. For example, a
modern laptop computer implements around 251 interoperability standards.
The concept of SEPs evolved in India when Ericson in 2011 objected to the importation of
handsets by Kingtech Electronics (India), claiming that the handsets infringed several of their
SEPs in AMR Codec (Adaptive Multi-Rate) technology. The Indian Patents Act, 1970 does
not contain any special provisions for SEPs. Although the same has been recognized by the
jurisprudence, SEP is defined as “…for a technology that forms a part of a standard, the patent
is regarded as an essential patent for such standard. An essential patent can be said to be a
patent that corresponds to an industry standard. The same standard is mutually agreed by
various service providers, equipment manufacturers, etc to be mandatorily implemented for a
particular technology (such standards are recognized and implemented by the concerned
government authority as well). It is meant to ensure that complete compatibility is achieved. It
is impossible to claim compatibility with technology (as defined by the concerned standards)
without actually infringing the specific patent (and hence the requirement to obtain a license).
Data Exclusivity
Data Exclusivity is a TRIPs Plus element that is much debated in India. It arises from the
interpretation of Article 39 of the TRIPs agreement, “Members, when requiring, as a
condition of approving the marketing of pharmaceutical or of agricultural chemical products
which utilize new chemical entities, the submission of undisclosed test or other data, the
origination of which involves a considerable effort, shall protect such data against unfair
commercial use. In addition, Members shall protect such data against disclosure, except where
necessary to protect the public, or unless steps are taken to ensure that the data are protected
against unfair commercial use, wherein the big Pharmaceuticals and countries like the USA
interpret, “protection against unfair commercial use” to obviously mean, “protection of
clinical data required to be submitted to a regulatory agency to prove safety and efficacy of a
new drug, and prevention of generic drug manufacturers from relying on this data in their own
applications.” USTR (United States Trade Representative) has been negotiating bilateral
agreements enforcing the said interpretation of TRIPs, which is beyond the actual agreement
and is thus referred to as a TRIPs Plus clause, with India. The Drugs and Cosmetics Act,
1940 provides for data exclusivity for a “new drug” under section122E for a total period of 4
years from the date of approval. There were considerations in November 2016 that this period
of four years to be increased to ten years. Such exclusivity is itself protection and does not
depend upon the validity of the patent associated with the same drug, so even if the patent
associated with the drug stands invalidated, the exclusivity stands unaffected and the drug
remains out of the reach of the generic producers. There is no evidence that the four years of
protection, already provided, was insufficient, and neither is there any protocol necessitating
India to increase the said period. Such provision would delay market access of drugs at
reasonable prices to the common people. Although, the USA itself provides for 7 years of data
exclusivity the economic and developmental status of India, would suffer from such an
amendment to the section.
Orphan Drug Exclusivity
An orphan drug is a pharmaceutical agent that has been developed specifically to treat a rare
medical condition. India currently has no regulations for orphan drug manufacturing or selling.
Treating rare or orphan diseases is important to India but very costly, which increases the

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patient burden. In India, 72,611,605 people are suffering from rare diseases, and 6,000–8,000
rare diseases can be found, including Leishmaniasis, Norrie disease, Arthrogryposis, Cystic
Fibrosis, Wilson Disease, etc., many of which still do not have any cure and are mostly genetic
in nature.
Many countries have different definitions and regulations of orphan drugs,
USA under its The Orphan Drugs Act (ODA) is a federal law concerning rare diseases that
affect fewer than 200,000 people or are of low prevalence, or affects more than 200,000 in the
United States and for which there is no reasonable expectation that the cost of developing and
making available in the United States a drug for such disease or condition will be recovered
from sales in the United States of such drug. Determinations under the preceding sentence with
respect to any drug shall be made on the basis of the facts and circumstances as of the date the
request for designation of the drug under this subsection is made.
According to the Orphan Drug Regulation in Europe, an orphan disease is a disease or disorder
that affects fewer than 5 in 10,000 citizens.
In Australia, rare diseases are defined as a condition, syndrome, or disorder that affects 1 in
10,000 people or less (The Australian Therapeutic Goods Authority).
The lack of regulation in India increases the burden on the patients but also negatively impacts
the economic success of India’s pharmaceutical industry. Orphan drugs may help
pharmaceutical companies reduce the impact of revenue loss by patent expiration of
blockbuster drugs. Although there may still be challenges ahead for the industry, orphan drugs
seem to offer the key to recovery and stability within the market. Governments of various
countries have proactively implemented special incentives for the manufacturers of orphan
drugs. For example, regulations include accelerated marketing procedures, marketing
exclusivity, tax credit grants for research, reconsideration of applications for orphan
designation, and technical assistance for the elaboration of the application file.

New Plant Varieties

Criteria for Registration of a Variety
Novel: if at the date of filing an application for registration for protection, the propagating
or harvested material of such variety has not been sold or otherwise disposed of in India
earlier than one year or outside India, in the case of trees or vines earlier than six years,
or in any other case earlier than four years, before the date of filing such application.
Distinct: A variety is said to be distinct if it is clearly distinguishable by at least one
essential characteristic from any other variety whose existence is a matter of common
knowledge in any country at the time of filing an application.
Uniform: A variety is said to be uniform, if subject to the variation that may be expected
from the particular features of its propagation it is sufficiently uniform in its essential
characteristics.
Stable: A variety is said to be stable if its essential characteristics remain unchanged after
repeated propagation or, in the case of a particular cycle of propagation, at the end of
each such cycle.

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Types of Varieties
New Variety: A new variety can be registered under the Act if it conforms to the criteria for
novelty, distinctiveness, uniformity and stability.
Extant variety: An extant variety can be registered under the Act if it conforms to the criteria
for distinctiveness, uniformity and stability. Thus novelty is not considered while going for the
protection of plant varieties.
The PPV&FRA under section 2(j)(iii) and (iv) defines “extant variety” as any variety “which
is in public domain or about which there is a common knowledge.”
Farmers’ Variety: Under section 2 (l) farmers variety means a variety “which has been
traditionally cultivated and evolved by the farmers in their fields”.
Persons Who Can Apply For the Registration of Plant Variety
Application for registration of a variety can be made by:
1. any person claiming to be the breeder of the variety;
2. any successor of the breeder of the variety;
3. any person being the assignee or the breeder of the variety in respect of the right to make
such application;
4. any farmer or group of farmers or community of farmers claiming to be breeder of the
variety;
5. any person authorized to make application on behalf of farmers and
6. any University or publicly funded agricultural institution claiming to be breeder of the
variety.
6. any University or publicly funded agricultural institution claiming to be breeder of the
variety.
THE PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS ACT, 2001
In order to provide for the establishment of an effective legal system for the protection of plant
varieties, the rights of farmers and plant breeders and to encourage the development of new
varieties of plants it was considered necessary by the legislature to recognize and to protect the
rights of the farmers in respect of their contributions made at any time in conserving, improving
and making available plant genetic resources for the development of new plant varieties.
Keeping inter alia the above considerations in mind, the Government of India enacted “The
Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001” thereby adopting a
sui generis system. It is also important to note that the legislation is not only in conformity with
the International Union for the Protection of New Varieties of Plants (UPOV), 1978, but also
has sufficient provisions to protect the interest of public sector breeding institutions and the
farmers. Therefore, the objective behind bringing in such a legislation in India was not only to
comply with its international obligations but was also motivated by the considerations of
protecting the rights of farmers and plant breeders and in general to encourage development of
new varieties of plants. The main aim of this Act is to establish an effective system for the

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protection of plant varieties and, the rights of the breeders and to encourage the development
of new varieties of plants.
The legislation recognizes the contributions of both commercial plant breeders and farmers
engaged in plant breeding activities and also provides for the implementation of TRIPS
agreement which in a way supports the specific socio-economic interests of all the
stakeholders, including private and public sector, research institutions, as well as resource-
constrained farmers.
To implement the provisions of the PPV&FR Act, the Department of Agriculture and
Cooperation, Ministry of Agriculture, established a body by the name of ‘Protection of Plant
Varieties and Farmers’ Rights Authority’ in the year 2005 itself. The authority is headed by the
Chairperson who is its Chief Executive. Besides the Chairperson, the Authority also has 15
members. Eight of such members are the ex-officio members representing various
Departments/Ministries, three from SAUs and the State Governments, one representative each
for farmers, tribal organization, seed industry and women organization associated with
agricultural activities are further nominated by the Central Government. The Registrar General
of the Authority is the ex-officio Member Secretary of the Authority.
As mentioned above, India being a member of the WTO and being a signatory to the TRIPS
agreement enacted the ‘Protection of Plant Varieties and Farmers’ Rights Act, 2001’, for which
Rules were also subsequently notified in the year 2003 (The Gazette of India Extraordinary,
2001 and The Gazette of India, 2003). Under the Act, in exercise of the powers conferred upon
it under sub-section (1) of section 3, the Central Government established the ‘Protection of
Plant Varieties and Farmers’ Rights Authority’ on 11thNovember, 2005 (The Gazette of India,
2005). The Act provides that in order to specifically promote the encouragement, for the
development of new varieties of plants and to protect the rights of the farmers and breeders,
the Authority shall provide for registration of new and extant plant varieties, develop,
characterize and document the registered varieties, create compulsory cataloguing facility for
all varieties of plants, ensure that seeds of varieties registered under the Act are available to
farmers and provide for compulsory license, collect statistics with regard to plant varieties,
including the contribution of any person at any time in the evolution or development of any
plant variety and maintain National Register of plant varieties.
It is however important to note that the Plant varieties present in wilderness cannot be
registered, under the PPVFR Act. However, any traditionally cultivated plant variety which
has undergone the process of domestication/improvement through human interventions can be
registered and protected subject to fulfillment of the eligible criteria.
The impact of bringing into effect, enforce and implement the Protection of Plant Varieties and
Farmers’ Rights Act, 2001 can be seen in the way it has influenced the seed industry in India.
The Protection of Plant Varieties and Farmers’ Rights Authority has so far received
applications for registration of plant varieties in thousands of numbers and out of such huge
number of applicants many have been granted the Certificate of Registration (CoR) by the
authority. Therefore, it is evident that the purpose of the Act is being very well realised.
According to some analysis, it was found that farmers’ varieties formed 29 percent of all the
applications received. Further, Crop-wise analysis of issue of CoR revealed that cereals (such
as maize, bread wheat, rice, pearl millet and sorghum) and cotton along with few pulses formed
more than 90 percent of the varieties which were granted the CoR. Public sector contributed

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for 83 percent of the total CoR issued in all categories of varieties. But in case of new varieties
the private sector dominated with a share of almost 90 percent. For instance, two private seed
companies namely, Monsanto India Limited and MAHYCO together contributed 16 new
varieties out of a total of 34 new varieties being granted the CoR. Maize and cotton together
contributed for 66 percent of new varieties being granted the CoR. The widening gap between
the public and private sector seed companies in the development of innovations (new varieties,
hybrids and proprietary technologies) and getting plant variety protection is alarming.
Therefore, it is felt that the public sector seed industry needs to be revitalised to address the
present day challenges of competitiveness in R&D, market access, and efficient technology
transfer systems. It is interesting to note that India is the first country in the world to grant
registration for farmers’ varieties and this has its own implications for the developing countries
as well to follow this unique model.
Enforcement of legal protection for innovations in plant breeding by the plant breeders and
traditional farming communities in producing suitable varieties, producing food, fodder, fibre,
fuel and other commodities, provide an incentive for carrying out research, promote trade and
regulate use of plant genetic resources. In the year 1990 itself, the World Bank had reported
the existence of massive evidence that appropriate legal protection acted as an incentive for
productive research. According to the United Nations Conference on Trade and Development
(UNCTAD, 1991), Intellectual Property Rights (IPRs) constitute an important element of trade
negotiations. It has been widely stated and also accepted that in the new millennium, the
research paradigm would undergo a transformation, and suggested that ‘the interplay of IPRs,
technology development and technology transfer will determine the research contours and
portfolios’. It has also been reported that market access, Intellectual Property Rights and
regulatory review processes are the three factors identified by industry sources as important to
innovation in biotech seeds.
Some of the important definitions provided under the Act are as follows:
Section 2(c) defines the term “Breeder” as, “breeder” means a person or group of persons or a
farmer or group of farmers or any institution which has “bred, evolved or developed any
variety.
Section 2(i) defines the term “essentially derived variety” as, “essentially derived variety”, in
respect of a variety (the initial variety), shall be said to be essentially derived from such initial
variety when it-
(i) is predominantly derived from such initial variety, or from a variety that itself is
predominantly derived from such initial variety, while retaining the expression of the essential
characteristics that result from the genotype or combination of genotypes of such initial variety;
(ii) is clearly distinguishable from such initial variety;and
(iii) conforms (except for the differences which result from the act of derivation) to such initial
variety in the expression of the essential characteristics that result from the genotype or
combination of genotype of such initial variety.
Section 2(k) defines the term “Farmer” as, “farmer” means any person who-
(i) cultivates crops by cultivating the land himself;or

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(ii) cultivates crops by directly supervising the cultivation of land through any other person;or
(iii) conserves and preserves, severally or jointly, with any other person any wild species or
traditional varieties or adds value to such wild species or traditional varieties through selection
and identification of their useful properties.
Section 2(k) defines “Farmers Variety” as, “Farmers Variety” means a variety which-
(i) has been traditionally cultivated and evolved by the farmers in their fields,or
(ii) is a wild relative or land race of a variety about which the farmers possess the common
knowledge.
Section 2(x) defines the term “Seed” as, “seed” means a type of living embryo or propagule
capable of regeneration and giving rise to a plant which is true to such type.
Section 2(x) defines the term “ variety” as, “ variety” means a plant grouping except micro
organism within a single botanical tax of the lowest known rank, which can be-
(i) defined by the expression of the characteristics resulting from a given genotype of that plant
grouping;
(ii) distinguished from any other plant grouping by expression of at least one of the said
characteristics; and
(iii) considered as a unit with regard to its suitability for being propagated, which remains
unchanged after such propagation,
and includes propagating material of such variety, extant variety, transgenic variety, farmers’
variety and essentially derived variety.

Micro-Organisms
PATENTABLE INVENTIONS IN BIOTECHNOLOGY
The exciting developments in the domain of biotechnology have resulted in intensive R&D
activities all over the world including India. After information technology, biotechnology is
increasingly recognized as the next wave in the knowledge-based economy. Biotechnology has
been at the core of a number of important developments in the pharmaceutical, agrochemical,
energy and environmental sectors. In particular, progress in the field of molecular biology,
biotechnology and molecular medicine has highlighted the potential of biotechnology for the
pharmaceutical industry.
Conventionally, a micro-organism is considered as an organism that is microscopic, i.e., too
small to be seen by the naked human eye and can be viewed only under a microscope, usually,
an ordinary light microscope. Micro-organisms include bacteria, fungi, virus, protists and other
prokaryotes as well as some microscopic plants (phytoplankton) and animals (zooplankton).
Prior to 1980, micro-organisms were clearly “products of nature” and as such were not
considered patentable. In 1980 the US Supreme Court in Anand Chakrabarty’s case allowed
patenting of crude oil spilling bacterium) and this subject has been drawing a great deal of
attention all over the world. As microorganisms are important constituents of biodiversity,

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issues like the origin of a microorganism and its patentability and ownership have gained
importance.
The US Supreme Court ruled that genetically altered micro-organisms were indeed patentable
based on the following criteria:
• They were man-made;
• They were products of human manipulation and therefore considered similar to any other
invention;
• They had a specified industrial application (one criterion for patenting is that the invention
has utility).
Further, Supreme Court cited the fact that there was precedence for patenting living matter.
Since 1930 certain asexually reproduced plants have been protected by patenting. Furthermore,
in 1970 the Plant Variety Protection Act allowed for protection of some sexually reproduced
plants.
As a result of the Supreme Court’s decision, the US biotechnology industry flourished and
many US patents have been granted on human-made higher life forms such as transgenic mice,
fish etc. Thus, microorganisms, plants and animals have now all received U.S. patenting status.
Europe views patenting of “man-made” life in much the same manner as the U.S. patent office.
TRIPS Agreement obliges member states to patent micro-organisms. Article 27.3 permits
WTO member countries to exclude two specific classes of subject matter from patentability:
(1) diagnostic, therapeutic, and surgical methods for the treatment of humans or animals; and
(2) plants and animals other than microorganisms, and essentially biological processes for the
production of plants or animals other than non biological and microbiological processes.
Though the TRIPS agreement mandates patent protection for micro-organisms, it does not
define micro- organisms; thus there is no standard definition for member nations to follow.
To comply with the World Trade Organization (WTO), Trade-Related Aspects of Intellectual
Property Rights (TRIPS) Agreement, India amended the Patents Act, 1970 with effect from
January 2005. The Indian Patent Act has now a specific provision in regard to patenting of
micro-organisms and microbiological processes. It is now possible to get a patent for a
microbiological process and also products emanating from such processes.
The most vital distinction between the legal practices of India and developed countries is that
India does not allow patenting of micro-organisms which already exist in nature, as the same
is considered to be a discovery as per the provisions of the Section 3(d) of the Patents Act,
1970 and therefore not patentable. But genetically modified versions of the same
microorganisms that result in enhancement of its known efficacies are patentable.
Another requirement is sufficiency of disclosure which is very important. The Patents Act,
1970 stipulates that sufficient and clear description of the invention should be given. The Act
or the Rule, however, does not stipulate any condition or procedure to meet the requirement of
sufficiency of disclosure in the case of inventions involving use of biological material, which
are very difficult to describe in words.

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It has been the practice of the Patent Office from time immemorial to follow the practice
adopted by the foreign patent offices by allowing the accession No., accorded by a depository
institution either foreign or Indian in the patent specification to satisfy the requirement of
sufficiency of disclosure of the invention desired to be patented.
It may be mentioned here that a system of depositing strain of microorganisms in some
recognized depositories was evolved way back in 1949 in USA. An international treaty called
“Budapest Treaty” was signed in Budapest in 1973 and later on amended in 1980. India became
a member of this Treaty with effect from December 17, 2001. This is an international
convention governing the recognition of deposits in officially approved culture collections for
the purpose of patent applications in any country that is a party to this treaty. Because of the
difficulties and virtual impossibility of reproducing a microorganism from a description of it
in a patent specification, it is essential to deposit a strain in a culture collection centre for testing
and examination by others.
Under the Patents Act, 1970 if the invention uses a biological material which is new, it is
essential to deposit the same in the International Depository Authority (IDA) prior to the filing
of the application in India in order to supplement the description. The description in the
specification should contain the name and address of the International Depository Authority
and date and number of deposition of Biological material. [Section 10(4) (d)(ii)]. If such
biological material is already known, in such case it is not essential to deposit the same. There
are many international depositories in different countries such as MTCC, DSM etc. which are
recognized under the Budapest Treaty.
The Institute of Microbial Technology (IMTECH), Chandigarh is the first Indian depository
set up under the Budapest Treaty. Very recently Microbial Culture Collection Centre (MCC),
Pune (which is located in the NCCS, Pune) has been recognized International Depository
Authority (IDA) under the Budapest Treaty on the International Recognition of the Deposit of
Micro-organisms for the Purpose of Patent Procedure.
THE BIODIVERSITY ACT, 2002
Pursuant to the CBD, India enacted the Biological Diversity Act in 2002, and notified
Biological Diversity Rules in 2004, to give effect to the provisions of this Convention. The Act
is implemented through a three- tiered institutional structure at the national, state and local
levels. The National Biodiversity Authority (NBA) has been set up in October, 2003 in
Chennai. As per Section 8(4) of the Act, the NBA consists of a Chairperson, five non-official
and ten ex-officio members to be appointed by the Central Government to represent various
Ministries.
The Biological Diversity Act, 2002 is an Act of the Parliament of India for preservation of
biological diversity in India, and provides mechanism for equitable sharing of benefits arising
out of the use of traditional biological resources and knowledge. The Act was enacted to meet
the obligations under Convention on Biological Diversity (CBD), to which India is a party.
The is an Act to provide for conservation of biological diversity, sustainable use of its
components and fair and equitable sharing of the benefits arising out of the use of biological
resources, knowledge and for matters connected therewith or incidental thereto. Whereas India
is rich in biological diversity and associated traditional and contemporary knowledge system

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relating thereto. And whereas India is a party to the United Nations Convention on Biological
Diversity signed at Rio de Janeiro on the 5th day of June, 1992.
The vision of NBA is the conservation and sustainable use of India’s rich biodiversity and
associated knowledge with peoples participation, ensuring the process of benefit sharing for
well being of present and future generations. The mission of NBA is to ensure effective
implementation of Biological Diversity Act, 2002 and the Biological Diversity Rules 2004 for
conservation of biodiversity, sustainable use of its components and fair and equitable sharing
of benefits arising out of utilization of genetic resources.
The NBA inter-alia deals with all matters relating to requests for access by foreign individuals,
institutions or companies, and transfer of results of research to any foreigner. The State
Biodiversity Boards (SBBs) constituted by the State Governments deal with all matters relating
to access by Indians for commercial purposes. The institutions of self-governments are required
to set up Biodiversity Management Committees (BMCs) in their respective areas for
conservation, sustainable use, documentation of biodiversity and chronicling of knowledge
related to biodiversity.
Biodiversity and Biological Resource
Biodiversity has been defined under Section 2(b) of the Act as “the variability among living
organisms from all sources and the ecological complexes of which they are part, and includes
diversity within species or between species and of eco-systems”. The Act also defines,
Biological resources as “plants, animals and micro-organisms or parts thereof, their genetic
material and by-products (excluding value added products) with actual or potential use or
value, but does not include human genetic material.”
Lay-out Designs
In modern technology, integrated circuits are essential elements for a wide range of electrical
products, including articles of everyday use, such as watches, television sets, washing
machines, and cars, as well as sophisticated computers, smart phones, and other digital devices.
With the advancement of this information technology, a new branch in the field of intellectual
property flourished, called as the Layout-Design or the of the semiconductor integrated circuits.
Hence, a step was taken by various organizations to pass regulations regarding this issue. One
such was the World Trade Organization, and the result was the TRIPS agreement addressing
the intellectual property related issues. India being a signatory of the WTO also passed an Act
in conformity with the TRIPS agreement called the Semiconductor Integrated Circuits Layout-
Design Act (SICLDA) passed in the year 2000. Considering the significance of semiconductors
as a novel branch of intellectual property, this chapters aims at discussing the concept of
Layout-Designs of Integrated Circuits along with the major provisions of Semiconductor
Integrated Circuits Layout-Design Act, 2000.
Layout Designs (topographies) of Integrated Circuits is a subject in the field of protection of
Intellectual Property. Integrated circuits which are commonly known as ‘chips’ or ‘micro-
chips’ are the electronic circuits in which all the components (transistors, diodes and resistors)
have been assembled in a certain order on the surface of a thin semiconductor material (usually
silicon).

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In the modern day technology, Integrated Circuits are an essential element for a wide range of
electrical products, including articles of everyday use, such as, watches, television sets,
washing machines, and cars, as well as sophisticated computers, smart phones, and other digital
devices. Developing innovative layout designs of Integrated Circuits is essential for the
production of ever-smaller digital devices with more functions.
While the creation of a new layout-design is usually the result of an enormous investment, both
in financial terms and in terms of the time required from highly qualified experts, the copying
of such a layout-design may cost only a fraction of the original investment. In order to prevent
unauthorized copying of layout designs and to provide incentives for investing in this field, the
layout design (topography) of integrated circuits is protected under a sui generis intellectual
property system.
In many developed nations, including United States, intellectual property law, a “mask work”
is a two or three-dimensional layout or topography of an integrated circuit (IC or “chip”), i.e.,
the arrangement on a chip of semiconductor devices such as transistors and passive electronic
components such as resistors and interconnections. The layout is called a mask work because,
in photolithographic processes, the multiple etched layers within actual ICs are each created
using a mask, called the photo mask, to permit or block the light at specific locations,
sometimes for hundreds of chips on a wafer simultaneously.
Because of the functional nature of the mask geometry, the designs cannot be effectively
protected under copyright law (except perhaps as decorative art). Similarly, because individual
lithographic mask works are not clearly protectable subject matter, they also cannot be
effectively protected under patent law, although any processes implemented in the work may
be patentable. So since the 1990s, many national governments have been granting copyright-
like exclusive rights conferring time-limited exclusivity to reproduction of a particular layout.
Term of Integrated Circuit rights are usually shorter than copyrights applicable on pictures.
Layout – Designs of Integrated Circuits: International Law
A diplomatic conference was held at Washington, D.C., in 1989, which adopted a Treaty on
Intellectual Property in Respect of Integrated Circuits, also called the Washington Treaty or
IPIC Treaty. The Treaty, signed at Washington on May 26, 1989, is open to States Members
of WIPO or the United Nations and to inter-governmental organizations meeting certain
criteria.
The Treaty has been incorporated by reference into the TRIPS Agreement of the World Trade
Organization (WTO), subject to the following modifications: the term of protection is at least
10 (rather than eight) years from the date of filing an application or of the first commercial
exploitation in the world, but Members may provide a term of protection of 15 years from the
creation of the layout-design; the exclusive right of the right- holder extends also to articles
incorporating integrated circuits in which a protected layout-design is incorporated, in so far as
it continues to contain an unlawfully reproduced layout-design; the circumstances in which
layout-designs may be used without the consent of right-holders are more restricted; certain
acts engaged in unknowingly will not constitute infringement.
The IPIC Treaty is currently not in force, but was partially integrated into the TRIPS agreement.
Article 35 of TRIPS in Relation to the IPIC Treaty states:

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Members agree to provide protection to the layout-designs (topographies) of integrated circuits
(referred to in this Agreement as “layout-designs”) in accordance with Articles 2 through 7
(other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on
Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the
following provisions.
Article 2 of the IPIC Treaty gives the following definitions:
• ‘integrated circuit’ means a product, in its final form or an intermediate form, in which the
elements, at least one of which is an active element, and some or all of the inter-connections
are integrally formed in and/or on a piece of material and which is intended to perform an
electronic function,
• ‘layout-design (topography)’ means the three-dimensional disposition, however expressed,
of the elements, at least one of which is an active element, and of some or all of the
interconnections of an integrated circuit, or such a three-dimensional disposition prepared for
an integrated circuit intended for manufacture...
Under the IPIC Treaty, each Contracting Party is obliged to secure, throughout its territory,
exclusive rights in layout-designs (topographies) of integrated circuits, whether or not the
integrated circuit concerned is incorporated in an article. Such obligation applies to layout-
designs that are original in the sense that they are the result of their creators’ own intellectual
effort and are not commonplace among creators of layout designs and manufacturers of
integrated circuits at the time of their creation.
The Contracting Parties must, as a minimum, consider the following acts to be unlawful if
performed without the authorization of the holder of the right: the reproduction of the lay-out
design, and the importation, sale or other distribution for commercial purposes of the layout-
design or an integrated circuit in which the layout- design is incorporated. However, certain
acts may be freely performed for private purposes or for the sole purpose of evaluation,
analysis, research or teaching.
The Semiconductor Integrated Circuits Layout-Design Act, 2000
In compliance with the TRIPS Agreement, India has enacted the Semiconductor Integrated
Circuits Layout- Designs Act, 2000 in order to provide protection to layout designs of
integrated circuits. The Act defines “Layout Design” to mean a layout of transistors and other
circuitry elements and includes lead wires connecting such elements and expressed in any
manner in a semiconductor integrated circuit. Under the (Indian) Semiconductor for Integrated
Circuits Layout-Designs Act, 2000, a Semiconductor Integrated Circuit has been defined as a
product having transistors and other circuitry elements which are inseparably formed on a
semiconductor material or an insulating material or inside the semiconductor material and
designed to perform an electronic circuitry function.
Prohibition of Registration of Certain Layout-Designs
The SICLD Act, 2000 prohibits the registration of certain Layout designs. Layout design which
is not original is prohibited. Similarly, the registration of layout design which has been
commercially exploited anywhere in India or a convention country has been prohibited. Layout
design which is not inherently distinctive or which is not inherently capable of being
distinguishable from any other registered layout-design also cannot be registered. The Act,

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however, provides that a layout-design which has been commercially exploited for not more
than two years from the date on which an application for its registration has been filed either
in India or a convention country shall be considered as not having been commercially exploited.
According to SICLD Act, 2000, layout-design is to be considered as original if it is the result
of its creator’s intellectual efforts and is not commonly known to the creators of layout-designs
and manufacturers of semiconductor integrated circuits at the time of its creation. The Act
further provides that a layout-design consisting of such combination of elements and
interconnections that are commonly known among creators of layout-designs and
manufacturers of semiconductor integrated circuits shall be considered as original if such
combination taken as a whole is the result of its creator’s intellectual efforts. Furthermore, this
Act provides that where an original layout-design has been created in execution of a
commission or a contract of employment, the right of registration to such layout-design shall
belong, in the absence of any contractual provision to the contrary, to the person who
commissioned the work or to the employer.
Use of registered layout-design by registered users
When registered layout-design is intended to be allowed to be used by some other person, then
such person is required to be registered with the Registrar as registered user. Registered
proprietor and the proposed registered user shall have to make a joint application in writing to
the Registrar in a prescribed manner along with agreement in writing (or a authenticated copy),
entered into between them with regard to use of layout design showing particulars of the
relationship, existing or proposed, including the degree of control by the proprietor over the
permitted use which this relationship will confer. The particulars should also clarify whether
the proposed registered user shall be sole registered user and mention the place and duration of
permitted use. After getting the compliance of requirements under the Act, the Registrar
registers the proposed registered user.
The Registrar has the powers under the Act to cancel the registration as a registered user of
layout design on any of the following grounds:
(i) Registered user has not used the layout-design in accordance with the agreement;
(ii) The proprietor or the registered user misrepresented, or failed to disclose some material
facts at the time of application which would have an adverse bearing on the registration of the
registered user;
(iii) The circumstances have changed since the date of registration in such a way that at the
date of such application for cancellation they would not have justified registration of the
registered user;
(iv) That the registration ought not to have been effected having regard to right vested in the
applicant by a contract in the performance of which he is interested;
(v) Registration may be cancelled by the Registrar of his motion or on the application in writing
by any person on the ground that any stipulation in the agreement between the registered
proprietor and the registered user regarding the topographical dimensions of the layout design
is either not being enforced or is not being complied with;
(vi) Registration may be cancelled by the Registrar if the layout-design is no longer registered.

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The Registrar is required to issue notice in respect of every application received for cancellation
of registration of registered user to the registered proprietor and each registered user (not being
the applicant) of the layout-design. However, before cancelling of registration, the registered
proprietor shall be given a reasonable opportunity of being heard.
Traditional Knowledge and Indigenous Knowledge
The Rights of Indigenous Peoples and Traditional Knowledge
Since 1990s, the UN Human Rights machinery started emphasized the rights of indigenous
communities. People from such communities who were jointly entitled to the conferment of
such rights/privileges started demanding from the states their right of recognition as well as
right to control over their culture, including traditional knowledge relating to biodiversity,
medicines, and agriculture. From the Intellectual Property law perspective, much of this
knowledge was regarded as being part of the public domain, since it did not meet the
established subject matter criteria for protection, or because the indigenous communities who
created it did not endorse private ownership rules.
By regarding traditional knowledge as effectively un-owned by any single individual or
community, the Intellectual Property law made such knowledge vulnerable to an unrestricted
exploitation by the outsiders. Many of such outsiders used this knowledge as an upstream input
for later downstream innovations that were themselves privatized through Patents, Copyrights,
and Plant Breeders’ rights. Adding to their pains, the financial and technological benefits of
those innovations were rarely shared with the indigenous communities. UN Human Rights
bodies sought to cover this hole in the fabric of Intellectual Property law by commissioning a
working group and a special rapporteur to create a Draft Declaration on the Rights of
Indigenous Peoples, and Principles and Guidelines for the Protection of the Heritage of
Indigenous People. These documents adopted a sceptical approach to Intellectual Property
protection.
BIO-DIVERSITY AND IPR
In simple terms, the diversity among various life forms within the Biosphere refers to
biodiversity. Biodiversity is the foundation of life on Earth. It is crucial for the functioning of
ecosystems which provide us with products and services without which we cannot live. By
changing biodiversity, we strongly affect human well-being and the well-being of every other
living creature. Biodiversity is normally classified under 3 major categories:
a) ecosystem diversity, representing the principal bio geographic regions and habitats;
b) Species diversity, representing variability at the level of families, genera and species; and
c) Genetic diversity, representing the large amount of variability occurring within a species.
Diverse activities and actions have been taken by several stakeholders at local, state, national
and international level to conserve/protect the valuable resource such as biodiversity to draw
the benefits accrued in it for the society.
It is a well-established fact that developing countries are rich in the world’s flora and fauna and
80 percent of the earth’s terrestrial biodiversity is confined to these countries, which is the “raw
material” for biotechnology, i.e., genes, folk varieties, land races to develop new varieties by
biotechnology. Until the advent of molecular biology and genetic engineering, the success of

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plant breeding depended on access to genetic variability within a species. Genetic engineering
has, however, rendered the transfer of genes across sexual barriers possible and has thus
enhanced the economic value of biodiversity.
The developed countries are not rich in biogenetic resources but are better equipped in research
and development. They use the biogenetic resources accessed from the developing countries.
As a result, there is a beginning in the unprotected flow of genetic information from the
developing countries to the capital-rich west, and a protected flow in the reverse direction
mainly through patents and Plant Breeders’ Rights (PBR). It has both visible and invisible
impacts. Genetic erosion is one of the most important invisible impacts that is in the long run
manifested visibly with the loss of biodiversity.
The Convention on Biological Diversity (CBD) 1992: Opened for signature at the Earth
Summit in Rio de Janeiro in 1992, and entering into force in December 1993, the Convention
on Biological Diversity is an international treaty for the conservation of biodiversity, the
sustainable use of the components of biodiversity and the equitable sharing of the benefits
derived from the use of genetic resources. The interface between biodiversity and intellectual
property is shaped at the international level by several treaties and process, including at the
WIPO, and the TRIPS Council of the WTO. With 193 Parties, the Convention has near
universal participation among countries. The Convention seeks to address all threats to
biodiversity and ecosystem services, including threats from climate change, through scientific
assessments, the development of tools, incentives and processes, the transfer of technologies
and good practices and the full and active involvement of relevant stakeholders including
indigenous and local communities, youth, NGOs, women and the business community. The
Cartagena Protocol on Bio safety is a subsidiary agreement to the Convention. It seeks to
protect biological diversity from the potential risks posed by living modified organisms
resulting from modern biotechnology.
The treaty defines biodiversity as “the variability among living organisms from all sources
including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological
complexes of which they are part; this includes diversity within species, between species and
of ecosystems.”
The Convention reaffirms the principle of state sovereignty, which grants states sovereign
rights to exploit their resources pursuant to their own environmental policies together with the
responsibility to ensure that activities within their own jurisdiction or control do not cause
damage to the environment of other states. The Biodiversity Convention also provides a general
legal framework regulating access to biological resources and the sharing of benefits arising
from their use. India is a party to the Convention on Biological Diversity (1992).
The Convention on Biological Diversity establishes important principles regarding the
protection of biodiversity while recognizing the vast commercial value of the planet’s store of
germplasm. However, the expansion of international trade agreements establishing a global
regime of intellectual property rights creates incentives that may destroy biodiversity, while
undercutting social and economic development opportunities as well as cultural diversity. The
member countries were pressurized to change their IPR laws to confirm to the TRIPS
agreement.

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India also followed the suit by placing in place legal frameworks for the management of
biodiversity and Intellectual property laws. Following India’s ratification of the Convention on
Biological Diversity (CBD) at international level, the Biological Diversity Act, 2002 was
adopted. The Biological Diversity Act aims at conservation of biological resources and
associated knowledge as well as facilitating access to them in a sustainable manner and through
a just process.
Bio-piracy-IPRS and Bio-technology
Intellectual Property Rights require being creative. But what is creativity, and can it encompass
within it the dimensions of life?
With time priorities are shifting from social need to potential return on investment, and this has
served as the principal criterion for commercially guided research. If this continues, there will
be a period the rivulets of knowledge(s), and learning will be forgotten and become extinct.
COMPREHENDING BIO-PIRACY
Bio-piracy is the act of financially abusing normal happening biochemical or hereditary
processes, by getting licenses that limit its future use while neglecting reasonable compensation
to the communities from whom it originates. The term is in vogue for explaining the situation
where indigenous knowledge of nature is being used by others without furnishing due
acknowledgment to the holders of the same. It is associated with intellectual property rights
and is concerned with traditional knowledge or know-how of the local communities enclosed
by the biodiversity.
The problem of bio-piracy has broader international implications that has made it an urgent
issue for all countries. Bio-piracy as a threat to biodiversity is a result of the IPR regime and
the conflicting interests of the two groups i.e., Transnational companies and natural diversity
that has posed challenges upon the Western assumption on the propriety of patents. The conflict
has also presented the problem of misunderstandings and disagreements of the developing
countries with Western patent laws. Bio-piracy disputes are several, and most of the episodes
suggest that bio-piracy patents are contrary to the wishes of indigenous communities who are
inclined to keep certain erudition sacred.
The seed of the earth: Can we claim?
“Life is not an invention” this phrase meant to convey to the market that it cannot apply for the
patent claiming they created a new life.
Over the last two decades, IPRs and particularly patents have covered a large field of activities.
The corporations have successfully influenced patent laws to acquire the ownership of life and
control over the survival essentials like seeds and medicine, and other life forms. Such
ownership is criticized by authors for being violative of Article 21 of the Constitution of India.
IPRs have been expanded to cover the living systems and organisms in the fake garb of
‘innovation’ and ‘invention’. Such distortions are compositions of big corporations dealing in
pharmaceuticals, cosmetics, and agribusiness, etc.
With time corporations have acquired controlling powers to dominate the diversity of life on
the earth and are influencing people’s indigenous knowledge by proposing and implementing
new property rights. There are cases around the globe and particularly in India where
corporations have robbed people out of their knowledge and have registered the products of

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the same in their names. There is no innovation in these cases; instead, they are instruments of
monopoly over life itself. Life forms are now redefined as ‘machines and manufacture’
snatching the integrity and self-organization that life held. A new epidemic of bio-piracy has
been unleashed by the involvement in the piracy and patenting of traditional knowledge.
Patents on life embed creativity intrinsic to the living systems under which happens the
reproduction and exists the freedom of self-organization. Patents going beyond, engird the
internal ranges of the figures of plants, animals, and women. They are capturing free locutions
by converting publicly kindled information into private property. IPRs that are supposed to
reward and stimulate creativity concerning life-forms are in turn stifling the creativity
fundamental to the social production of knowledge. The world has moved generations to
replace the ideology of terra mater with that of terra nullius (empty lands been expanded to
empty lives).

Bio-prospecting is the exploration of commercially worth biochemical and genetic resources.

The simile is plagiarized from the prospecting for oil or gold. Biodiversity is fast becoming the
green oil and green gold for the biotechnology and pharmaceutical industries, the metaphor
suggests that the value and use of biodiversity lie with the prospector, when it is held by local
indigenous communities. The metaphor denies the fact that biodiversity was not buried and
unused before it was being prospected. Unlike gold and oil, it did not lie beneath the earth; on
the contrary, the local communities knew its value and use long before prospecting.
TRIPS is encroaching on the Common Property Rights to biodiversity and biodiversity-related
knowledge because the entire design of TRIPS is to proffer individuals and corporations the
monopoly rights as stated in the 1988 industry paper, “Basic Framework for GATT Provisions
on Intellectual Property,” coauthored by IPC, Keidanren, and UNICE:
“Because national intellectual property protection systems differ, intellectual property right
owners spend a disproportionate amount of time and resources to acquire and defend rights.
These owners also find that the exercise of intellectual property rights is encumbered by laws
and regulations limiting market access or the ability to repatriate profits”.
The TRIPS agreement by letting monopolistic charge or control on life-forms has posed severe
repercussions for biodiversity preservation and the environment. Article 27 (3) (b) of the
agreement states:
Members may exclude from patentability plants and animals other than micro-organisms, and
essentially biological processes for the production of plants or animals other than non-
biological and microbiological processes. However, Members shall provide for the protection
of plant varieties either by patents or by an effective sui generis system or by any combination
thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry
into force of the WTO Agreement.
The developing countries were always in threat when it came to TRIPS, the Indian Minister of
Trade and Commerce Shri Murasoli Maran in a forum on “Intellectual Property Policy and
Strategy in the 21st Century,” at Geneva in 2000 expressed his fear of how “the industrialized
countries are using TRIPS as a tool to prevent developing countries having used reversed

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engineering and other methods of imitative innovation during their process of
industrialization”.
The practical implementation of TRIPS and other IPR related laws is mocked by the torch-
bearing North or Western corner of the globe. Surmounted dominions were treated as people
less when patents of the 15th and 16th centuries were granted. People were naturalized into
“our subjects.” Today, we remain to be the subjects of the Western power markets and the
growing trends of protection for profit generation. The regime has shifted the interest of
commons to the private right thus, supporting the private right over the empty seeds of life. As
understood by Dr. Vandana Shiva TRIPS is hence a tool for the privatization of the learned
commons and for de-intellectualization of civic society as the mind has become a corporate
monopoly. Surely, our planet deserves a fairer deal.

Patenting of life forms and bio-ethical issues relating thereto

Biotechnology is the process of modifying the living organisms in such a way that they become
more productive for the humans. The recent trends in biotechnology techniques i.e.
recommendations DNA, cell fusion, and monoclonal antibody technology have raised
fundamental social and moral questions and created problems in intellectual property rights.
Over the last 25 years, the sector of biotechnological inventions has experienced growth. It is
an extremely dynamic area wherein there have been constant innovations. One of the most
important sectors in biotechnology is DNA. Scientists have been able to use the DNA of some
living organisms and cloned the same.
Article 27 of TRIPS discusses about the agreed international norms on patentability of the
inventions. It states that any product or process shall be patentable if the said product or process
is new, involves an inventive step and has industrial application. This criterion is same in all
countries that are signatories of the TRIPS Agreement. According to Article 27.2, inventions
against public order or morality or which would cause serious prejudice to the plant, animal
and human health and life can be excluded from patentability provided that such exclusion is
not made merely because the exploitation is prohibited by their law. According to Article 27.3,
therapeutic, diagnostic and surgical methods as well as plants and animals except
microorganism cannot be patented. Also, it has been agreed that the protection may be extended
to the plant varieties through a sui generis system or patent etc.
To be a patentable invention in India, the requirement of novelty, inventive step and industrial
application must be met. Also, it should not fall within the criteria mentioned in Section 3 and
4 of the Patents Act, 1970. In case of biotech patents, the following inventions are excluded
from patentability:
1) An invention would not be patentable if it is immoral or against public order, harmful
to human, animal or plant life or harmful to environment.
2) Discovery of living things or non-living substances in nature
3) Plants and animals in whole or any parts thereof other than micro-organisms but
including seeds, varieties and species.
4) Essentially biological processes for the production or propagation of plants and
animals.

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 5) Any Process for the medicinal, surgical, curative, prophylactic, diagnostic or
therapeutic or other treatment of human beings or animals to render them free of disease
or to increase their economic value or that of their products.
6) New use or new property of known substance.
7) Methods of agriculture or horticulture.
8) Traditional knowledge.
Issues surrounding ownership of genes and genetically modified humans, moral and identity
dangers inherent in human cloning and genetic modification of human beings, suffering to
animals due to genetic intervention, potential hazards to environment due to genetic
manipulation, ecological balance are some of the serious issues related to granting patents on
biotech inventions. Therefore, despite being a useful area to the scientists, procuring a patent
in biotechnology at times is rather tricky in India.

Patenting of Genetically modified Microorganisms

Section 3(c ) of the Patents Act, 1970 precludes patenting of discovery of any living thing or
non- living substance occurring in nature. This means an isolated naturally occurring gene is
not patentable but a genetically modified gene would be considered as patentable if it is new
and inventive having industrial application. As per Section 3(j) Plants and animals in ‘whole’
or ‘any part thereof’ is not patentable. Although, microorganisms are excluded from non-
patentability list, a conjoined reading with Section 3 (c) of the Patents Act, 1970 implies that
only modified microorganisms, which do not constitute discovery of living thing occurring in
nature, are patentable subject matter under the Act. Besides the claims on Plants and animals
in ‘whole’ or ‘any part thereof’ the claims relating to essentially biological processes of
growing plants, germination of seeds, of development stages of plants and animals are objected
under Section 3 (j) of the Patents Act, 1970. In 2002 Dimminaco A.G., applied for an invention
patenting the process for preparation of a live vaccine for Bursitis, an infectious poultry disease.
The invention involved a live vaccine to combat the disease. The Patent Office refused the
application on the ground that the process didn’t constitute an invention under the Indian Patent
Act, 1970. On appeal, the Calcutta High Court ruled that there is no statutory bar to accept a
manner of manufacture to be patentable if the product contains a living organism.

Patenting Animal Cloning

Section 3(j) precludes patenting of biological processes for production or propagation of plants
and animals. Further, as per Section 3(b) of the Patents Act, 1970, the invention must not be
contrary to public order, morality or causes serious prejudice to human, animal or plant life or
health or to the environment. The most serious issue with animal cloning is the adverse health
effects as they have been observed in sheep and the other mammals that have been cloned.
These include an increase in birth size and a number of defects in important organs such as the
liver, brains and heart. Besides these there has been premature aging and problems with the
immune system.

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Patenting Stem Cells

Section 3(j) of the Patents Act 1970 states that ‘plants and animals in whole or any part thereof
other than micro-organisms but including seeds, varieties and species and essentially biological
processes for production or propagation of plants and animals’ are not patentable. Stem cells
are considered to fall under the phrase ‘any part thereof’ and hence are excluded from
patentability. However, in vitro methods of differentiating, isolating/purifying and culturing of
stem cells may qualify as patentable subject matter, provided it is novel, involves an inventive
step and has industrial applicability.

In addition, Stem cells invention may also be objected under Section 3(b) of the Act, which
states that an invention, the primary or intended use or commercial exploitation of which could
be contrary public order or morality or which cause serious prejudice to human, animal or plant
life or health or to the environment, are not inventions.

Patenting Genetically Modified Seeds

Biotechnology has helped for the improvement of plants. Example, genetic engineering helps
introduce new genes with desirable traits such as insect resistance. The Patents Act, 1970
prohibits any patent on plants, plant varieties or seeds, but it does not exclude man made gene
sequences that are present in Genetically Modified Seeds. Under the Protection of Plant Variety
and Farmers Right Act, 2001, the creation of a new plant variety, which may include its
propagating material i.e. the seeds and includes within its ambit transgenic varieties is
protected. However the Patents Act, 1970 permits biotech companies to patent their artificially
engineered genes and use them to create transgenic seeds in a lab and selling the same. Seeds
can’t be patented in India. This is because a patent is an exclusive right granted to an inventor
to prevent others from making, using, producing, selling and distributing the patented
invention. A patent on seeds would prevent farmers from saving and exchanging seeds.

With respect to the expression ‘essentially biological process’, the Patent Office has not
officially defined the said expression neither in the statute nor through judicial decisions. The
biological guidelines issued by the Indian Patent Office in March 2013, does not have any
reference as to what constitutes ‘essentially biological processes’. There are a number of
examples in relation to Section 3 (j) of the Patents Act, one such example states that a claimed
method involving the step of cross-breeding for producing pure hybrid seeds, plants and crops
would be an essentially biological process and thus not allowable under Section 3(j). But there
is no clarification if there is substantial human intervention, will the method be patentable.

The field of biotechnology is progressing at a very high speed. Along with this rigorous
progress come many ethical and moral issues with respect to the patentability of the same.

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Moreover, it has been considered whether the inventions fall under the scope of the Patent Act,
1970 or not. In fact the patent system stimulates the development of technology rather than
control it. As per the annual report 2016-17 issued by the Controller General of Patents,
Designs and Trademark, 876 patents applications in relations to biotechnology were filed out
of which 355 patents were granted. Hence, among the developing countries, India has immense
potential to utilize biotechnology to solve some of its most intractable problems of productivity,
health and environment.
"Biotechnology can transform humanity provided humanity wishes to be transformed"
Geoffrey Carr-
Biotechnology inventions are important for human development. It is the broad area of biology
involving living systems and organisms to develop or make products, or any technological
application that uses biological systems, living organisms, or derivatives thereof, to make or
modify products or processes for specific uses.
Thomas Jefferson the man behind the first Patent Act did not have even slightest idea that the
life forms can ever become a subject of Patent protection. The most famous case of Diamond
v Anand Chakrabarty where a biochemist at GE developed a genetically modified organism
that had the ability to decompose crude oil. At first his patent application was rejected which
on further appeal was granted by the court with order stating "His claim is not to a hitherto
unknown natural phenomenon, but to a non-naturally occurring manufacture or composition of
matter-a product of human ingenuity".
Biotechnology Patent and India
Patent Act in India was enacted in 1856. It has been modified several times since then; one
major amendment being in 1970 which satisfied the international norms of patentability
covering novelty, inventive step and industrial application. But this version had nothing
specific concerning Biotechnology invention and protection. At the same time, since the patent
offices and courts in US and EU were seeing increasing number of biotech inventions and
patent application, the demand for amendment of Indian Patent Act to introduce biotech
patentability gained voice in India. The amendment came in 2002 to explicitly include
biochemical, biotechnological and microbiological processes within the definition of
potentially patentable process.
Statutory obstacles to patentability
The criteria for fulfilling patentability requirements are novelty, inventiveness, and industrial
application. Apart from this, some inventions are also excluded from patentability under
section 3 of the Patent Act, 1970.
What Is Not Patentable In India:
• Section 3 (b) - . As per the section an invention would not be patentable if it is immoral
or against public order, harmful to human, animal or plant life or harmful to
environment
• Discovery of living things or non- living substances in nature - Section 3 (c)
• Plants and animals in whole or any parts thereof other than micro-organisms but
including seeds, varieties and species - Section 3 (j)

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 • Essentially biological processes for the production or propagation of plants and
animals– Section 3 (j)
• Any Process for the medicinal, surgical, curative, prophylactic, diagnostic or
therapeutic or other treatment of human beings or animals to render them free of disease
or to increase their economic value or that of their products – Section 3(i)
• Methods of agriculture or horticulture – Section 3(h)
• Traditional knowledge – Section 3(p)
Deposition of biological material
Under Section 10(4) and rule 13 (8)of the Patent Act, an applicant must deposit the biological
material mentioned in the specification if it is unavailable to the public and cannot be described
adequately as per the provisions of the act. The material must be deposited with an international
depository authority under the Budapest Treaty.
The international depository authorities in India are the Microbial Culture Collection, Pune and
Microbial Type Culture Collection and Gene Bank, Chandigarh. It is the duty of the applicant
to give information w.r.t biological material used in specification.
Time period - The deposit must be made no later than the filing date of the patent application
in India. Mentioning of the deposit must be made in the specification within the prescribed
period (i.e. three months from the filing date).
Sequence listing
Sequence listing is the most important part of any bilological invention. It pertains to the listing
of nucleotides and amino acids. The details of nucleotides and/or amino acids shall be filed in
electronic form. However, the fee with respect to the equivalent number of pages shall be
payable. In the case of Biotechnology related inventions, relevant numbers of the sequence
listing shall be mentioned at appropriate place in the specification. Sequence listing should also
be given in electronic form.
Moral Issues
It is true that necessity propels any invention. In this new era our necessities are increasing
fuelling inventions but again it is our responsibility to protect our rights too.
I. Organ Transplantation - Organ transplantation is a big moral issue for biological based
invention. It possess a big moral issues. The biological invention facilitate the organ
transplantation is opposed by numerous intellectual based on religious faith. Also it is
anticipated by some that it may give rise to illegal Human trafficking.
II. Biological Weapons - Biological weapons are the most dreaded ones today, far more
dangerous than nuclear, chemical or conventional weapons. Discussion on this issue is
most crucial.
III. Bioinformatics- It is a methology of biological studies implemented with the help of
computer programme. It is generally used for gene identification and prediction of
upcoming diseases. Many believe that this could bring legal turmoil in the society. Also
it may hamper the natural living of humans.

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PATENTABLE INVENTIONS IN BIOTECHNOLOGY
The exciting developments in the domain of biotechnology have resulted in intensive R&D
activities all over the world including India. After information technology, biotechnology is
increasingly recognized as the next wave in the knowledge-based economy. Biotechnology has
been at the core of a number of important developments in the pharmaceutical, agrochemical,
energy and environmental sectors. In particular, progress in the field of molecular biology,
biotechnology and molecular medicine has highlighted the potential of biotechnology for the
pharmaceutical industry.
Conventionally, a micro-organism is considered as an organism that is microscopic, i.e., too
small to be seen by the naked human eye and can be viewed only under a microscope, usually,
an ordinary light microscope. Micro-organisms include bacteria, fungi, virus, protists and other
prokaryotes as well as some microscopic plants (phytoplankton) and animals (zooplankton).
Prior to 1980, micro-organisms were clearly “products of nature” and as such were not
considered patentable. In 1980 the US Supreme Court in Anand Chakrabarty’s case allowed
patenting of crude oil spilling bacterium) and this subject has been drawing a great deal of
attention all over the world. As microorganisms are important constituents of biodiversity,
issues like the origin of a microorganism and its patentability and ownership have gained
importance.
The US Supreme Court ruled that genetically altered micro-organisms were indeed patentable
based on the following criteria:
• They were man-made;
• They were products of human manipulation and therefore considered similar to any other
invention;
• They had a specified industrial application (one criterion for patenting is that the invention
has utility).
Further, Supreme Court cited the fact that there was precedence for patenting living matter.
Since 1930 certain asexually reproduced plants have been protected by patenting. Furthermore,
in 1970 the Plant Variety Protection Act allowed for protection of some sexually reproduced
plants.
As a result of the Supreme Court’s decision, the US biotechnology industry flourished and
many US patents have been granted on human-made higher life forms such as transgenic mice,
fish etc. Thus, microorganisms, plants and animals have now all received U.S. patenting status.
Europe views patenting of “man-made” life in much the same manner as the U.S. patent office.
TRIPS Agreement obliges member states to patent micro-organisms. Article 27.3 permits
WTO member countries to exclude two specific classes of subject matter from patentability:
(1) diagnostic, therapeutic, and surgical methods for the treatment of humans or animals; and
(2) plants and animals other than microorganisms, and essentially biological processes for the
production of plants or animals other than non biological and microbiological processes.

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Though the TRIPS agreement mandates patent protection for micro-organisms, it does not
define micro- organisms; thus there is no standard definition for member nations to follow.
To comply with the World Trade Organization (WTO), Trade-Related Aspects of Intellectual
Property Rights (TRIPS) Agreement, India amended the Patents Act, 1970 with effect from
January 2005. The Indian Patent Act has now a specific provision in regard to patenting of
micro-organisms and microbiological processes. It is now possible to get a patent for a
microbiological process and also products emanating from such processes.
The most vital distinction between the legal practices of India and developed countries is that
India does not allow patenting of micro-organisms which already exist in nature, as the same
is considered to be a discovery as per the provisions of the Section 3(d) of the Patents Act,
1970 and therefore not patentable. But genetically modified versions of the same
microorganisms that result in enhancement of its known efficacies are patentable.
Another requirement is sufficiency of disclosure which is very important. The Patents Act,
1970 stipulates that sufficient and clear description of the invention should be given. The Act
or the Rule, however, does not stipulate any condition or procedure to meet the requirement of
sufficiency of disclosure in the case of inventions involving use of biological material, which
are very difficult to describe in words.
It has been the practice of the Patent Office from time immemorial to follow the practice
adopted by the foreign patent offices by allowing the accession No., accorded by a depository
institution either foreign or Indian in the patent specification to satisfy the requirement of
sufficiency of disclosure of the invention desired to be patented.
It may be mentioned here that a system of depositing strain of microorganisms in some
recognized depositories was evolved way back in 1949 in USA. An international treaty called
“Budapest Treaty” was signed in Budapest in 1973 and later on amended in 1980. India became
a member of this Treaty with effect from December 17, 2001. This is an international
convention governing the recognition of deposits in officially approved culture collections for
the purpose of patent applications in any country that is a party to this treaty. Because of the
difficulties and virtual impossibility of reproducing a microorganism from a description of it
in a patent specification, it is essential to deposit a strain in a culture collection centre for testing
and examination by others.
Under the Patents Act, 1970 if the invention uses a biological material which is new, it is
essential to deposit the same in the International Depository Authority (IDA) prior to the filing
of the application in India in order to supplement the description. The description in the
specification should contain the name and address of the International Depository Authority
and date and number of deposition of Biological material. [Section 10(4) (d)(ii)]. If such
biological material is already known, in such case it is not essential to deposit the same. There
are many international depositories in different countries such as MTCC, DSM etc. which are
recognized under the Budapest Treaty.
The Institute of Microbial Technology (IMTECH), Chandigarh is the first Indian depository
set up under the Budapest Treaty. Very recently Microbial Culture Collection Centre (MCC),
Pune (which is located in the NCCS, Pune) has been recognized International Depository
Authority (IDA) under the Budapest Treaty on the International Recognition of the Deposit of
Micro-organisms for the Purpose of Patent Procedure.

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THE BIODIVERSITY ACT, 2002
Pursuant to the CBD, India enacted the Biological Diversity Act in 2002, and notified
Biological Diversity Rules in 2004, to give effect to the provisions of this Convention. The Act
is implemented through a three- tiered institutional structure at the national, state and local
levels. The National Biodiversity Authority (NBA) has been set up in October, 2003 in
Chennai. As per Section 8(4) of the Act, the NBA consists of a Chairperson, five non-official
and ten ex-officio members to be appointed by the Central Government to represent various
Ministries.
The Biological Diversity Act, 2002 is an Act of the Parliament of India for preservation of
biological diversity in India, and provides mechanism for equitable sharing of benefits arising
out of the use of traditional biological resources and knowledge. The Act was enacted to meet
the obligations under Convention on Biological Diversity (CBD), to which India is a party.
The is an Act to provide for conservation of biological diversity, sustainable use of its
components and fair and equitable sharing of the benefits arising out of the use of biological
resources, knowledge and for matters connected therewith or incidental thereto. Whereas India
is rich in biological diversity and associated traditional and contemporary knowledge system
relating thereto. And whereas India is a party to the United Nations Convention on Biological
Diversity signed at Rio de Janeiro on the 5th day of June, 1992.
The vision of NBA is the conservation and sustainable use of India’s rich biodiversity and
associated knowledge with peoples participation, ensuring the process of benefit sharing for
well being of present and future generations. The mission of NBA is to ensure effective
implementation of Biological Diversity Act, 2002 and the Biological Diversity Rules 2004 for
conservation of biodiversity, sustainable use of its components and fair and equitable sharing
of benefits arising out of utilization of genetic resources.
The NBA inter-alia deals with all matters relating to requests for access by foreign individuals,
institutions or companies, and transfer of results of research to any foreigner. The State
Biodiversity Boards (SBBs) constituted by the State Governments deal with all matters relating
to access by Indians for commercial purposes. The institutions of self-governments are required
to set up Biodiversity Management Committees (BMCs) in their respective areas for
conservation, sustainable use, documentation of biodiversity and chronicling of knowledge
related to biodiversity.

Biodiversity and Biological Resource

Biodiversity has been defined under Section 2(b) of the Act as “the variability among living
organisms from all sources and the ecological complexes of which they are part, and includes
diversity within species or between species and of eco-systems”. The Act also defines,
Biological resources as “plants, animals and micro-organisms or parts thereof, their genetic
material and by-products (excluding value added products) with actual or potential use or
value, but does not include human genetic material.”

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