Module 4 Intellectual Property Rights

Module 4: Intellectual property rights
Dr Ashwathanarayana R
Department of Genetics
Dayanand Sagar University, Bangalore
INTELLECTUAL PROPERTY RIGHTS
• Intellectual property right is an idea, a
design, an invention, a manuscript
which can ultimately given rise to
useful product.
• The development of such a property, as
a rule requires intellectual inputs
ingenuity an innovativeness it also
demands considerable monitory and all
other resources.
• But the major problem with IP is that
they can be copied, imitated or
reproduced, this minimizes the returns
to original inventor.
Objectives of IPR
• Financial incentive: These exclusive rights allow owners of IP to reap
monopoly profits these monopoly profits provide a financial incentive for the
creation of IP, and pay a associated research and development cost.
• Technology diffusion: Technology diffusion occurs if IP is licensed or sold,
conversely technology can equally be prevented from being shared should the
owner wish not to sell license.
• Economic growth: The legal monopoly granted by IP laws are credited with
significant contributions towards economic growth. Industries which rely on IP
protections are estimated to produce 72% more value added per employ than
non IP industries.
Benefits of IPR
• Advancing knowledge and bringing new knowledge eventually into the public
domain through the unique source information contain there in.
• Identifying the trends and experts in a field
• Evaluating the strength of competitors
• Identifying unexplored area for undertaking R & D so as to become a leader in
that area.
• Identifying unprotected areas to avoid infringement
Types of IPR
• Copyrights
• Trade marks
• Patents
• Trade secret
Copyrights
• Copy right gives the author of an original work exclusive
rights for a certain time period in relation to that work,
including its publications, distribution and adaptation, after
which time the work is said to enter the public domain.
Exclusive rights
• To produce copies or reproductions of the work and to sell
those copies
• To import or export the work
• To create derivative works
• To perform or display the work publicly
• To sell or assign these rights to others
• To transmit or display by radio or video
Trademark
• A trade mark is a distinctive sign or indicator used by an
individual, business organization or other legal entity to
identify that the products or services to consumers with which
the trade mark appear originate from a unique source and to
distinguish its product or services from those of other entities.
Patent
• Patent is an IPR relating to inventions and is grant of
exclusive right for limited period provided by the government
to the patentee in exchange of full disclosure of his invention
for excluding others from making using or selling, importing
the patented product or process producing that product for
those purposes.
RIGHTS OF PATENTEE
• To exploit the patent
• To license/assign the patent to others
• To surrender the patent
• To see for the infringement of the patent.
Trade secret
• When the individual owning an IP does not disclose the
property to anyone and keeps it as a closely guarded secret to
promote his business interest it is called TRADE SECRET
Advantages of trade secret
• Trade secret protection is not limited in time so long as a information or invention
that is trade secret is kept secret secrecy as well as novelty are the touch stones of a
Trade secret.
• Where a patent will only be granted for an invention that meets the statutory
requirements of patent ability in the country where a patent is sort a trade secret can
be maintained without meeting any statutory test so long as a trade secret is unique.
• When an invention is maintained as trade secret competitors are not apprised of the
secret.
• It is true that the enforcement of the patent right can be a very expensive
undertaking.
Trade secret
Disadvantages of trade secret
• Trade secret protection is viable only so long as a secret remains .
• It is perfectly proper to try to discover a trade secret legitimate means for eg.
Reverse engineering of the product presented to the public.
• Another undesirable aspect of trade secret protection is that there can be no
enabling publication if the trade secret protection is to continue.

TRIPS (The Trade-Related Aspects of Intellectual Property Rights)
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is in
the news now because of the recent US decision to support the temporary waiver of
patent rules for the coronavirus vaccines.
TRIPS Agreement
• Trade Related Aspects of Intellectual Property Right (TRIPS) is an agreement on
international IP rights.
• TRIPS came into force in 1995, as part of the agreement that established the
World Trade Organisation (WTO).
• TRIPS establishes minimum standards for the availability, scope, and use of
seven forms of intellectual property namely, trademarks, copyrights,
geographical indications, patents, industrial designs, layout designs for
integrated circuits, and undisclosed information or trade secrets.
• It applies basic international trade principles regarding intellectual property to
member states.
TRIPS Agreement
• It is applicable to all WTO members. TRIPS Agreement lays down the permissible
exceptions and limitations for balancing the interests of intellectual property with
the interests of public health and economic development.
• TRIPS is the most comprehensive international agreement on IP and it has a major
role in enabling trade in creativity and knowledge, in resolving trade disputes over
intellectual property, and in assuring WTO members the latitude to achieve their
domestic policy objectives.
• It frames the IP system in terms of innovation, technology transfer and public
welfare.
• The TRIPS Council is responsible for administering and monitoring the operation
of the TRIPS Agreement.
• TRIPS was negotiated during the Uruguay Round of the General Agreement on
Tariffs and Trade (GATT) in 1986–1994.The TRIPS Agreement is also described
as a “Berne and Paris-plus” Agreement.
TRIPS Agreement
Requirements
TRIPS requires member states to provide strong protection for intellectual property
rights. For example, under TRIPS:
• Copyright terms must extend at least 50 years, unless based on the life of the
author. (Art. 12 and 14)
• Copyright must be granted automatically, and not based upon any "formality",
such as registrations, as specified in the Berne Convention. (Art. 9)
• Computer programs must be regarded as "literary works" under copyright law
and receive the same terms of protection.
• National exceptions to copyright (such as "fair use" in the United States) are
constrained by the Berne three-step test.
• Patents must be granted for "inventions" in all "fields of technology" provided
they meet all other patentability requirements (although exceptions for certain
public interests are allowed (Art. 27.2 and 27.3) and must be enforceable for at
least 20 years (Art 33).
Requirements
• Exceptions to exclusive rights must be limited, provided that a normal
exploitation of the work (Art. 13) and normal exploitation of the patent (Art 30)
is not in conflict.
• No unreasonable prejudice to the legitimate interests of the right holders of
computer programs and patents is allowed.
• Legitimate interests of third parties have to be taken into account by patent rights
(Art 30).
• In each state, intellectual property laws may not offer any benefits to local
citizens which are not available to citizens of other TRIPS signatories under the
principle of national treatment (with certain limited exceptions, Art. 3 and
5).[10] TRIPS also has a most favored nation clause.
TRIPS: Main features
Coverage of TRIPS- Areas of intellectual property covered:
• copyright and related rights
• trademarks including service marks;
• geographical indications including appellations of origin;
• industrial designs;
• patents including the protection of new varieties of plants;
• the layout-designs of integrated circuits; and
• undisclosed information, including trade secrets and test data.
TRIPS: Main features
Enforcement Provisions
• General Principles applicable to IPRs
• Specifies Procedures that must be available
Dispute Settlement
• Part of the integrated Dispute Settlement System of the WTO
• No unilateral action by Members allowed
TRIPS contains
• Freedom to determine the appropriate method of implementing the Agreement
(Art. 1.1)
• National treatment (Art. 3)-forbids discrimination between a Member's own
nationals and the nationals of other Members
• Most-favoured nation treatment (MFN) (Art. 4, 5)- forbids discrimination
between the nationals of other Members
• Exhaustion of rights (Art. 6); see (WT/MIN(01)/DEC/2)
• Objectives (Art. 7); see WT/MIN(01)/DEC/2
• Principles (Art. 8); see WT/MIN(01)/DEC/2
Objectives
• To reduce distortions and impediments to international trade and take into
account the need to promote competent as well as adequate protection of IPRs
• To ensure that measures and procedures to enforce IPRs do not themselves
become barriers to legitimate trade
• To reduce tensions by reaching strengthened commitment to resolve disputes on
trade-related IP issues through multilateral procedures
• To establish a mutually supportive relationship between the World Trade
Organisation (WTO) and World Intellectual Property Organization (WIPO)
Basic principles: national treatment, MFN and balanced protection
• Non-discrimination features prominently in TRIPS, similar to GATT and
GATS,by following principles of:
• National Treatment (Article 3): Equal treatment for foreign and domestic
individuals and companies
• Most Favoured Nation (Article 4): Equal treatment for nationals of all trading
partners in the WTO
• TRIPS Agreement has additional important principle: Intellectual property
protection should contribute to technical innovation and transfer of technology
Relationship between TRIPS agreement and other IP treaties
• Respects the standards and complies with the multilateral conventions
administered by WIPO
• Incorporation of explicit provision of various conventions in WIPO into TRIPS
agreement allows WTO panels to interpret them
Acquisition and maintenance of IP
• Member countries must create office and operate governmental offices for the
acquisition and maintenance of IPRs
• Procedures for granting and registration of IPR must be reasonable
• Member country's law must provide for opposition, revocation and cancellation
• Member country may adopt measures to protect public health and the public
interest
Types of IPRs:
Copyright and related rights
• Copyright grants exclusive rights to the creator of original scientific,
artistic and literary works
• ‘Original’ is key in defining a work that qualifies for copyright protection
• The term of protection
• Countries to confine limitations or exceptions to exclusive rights to certain
special cases which do not conflict with exploitation of the work and not
prejudicial to right holder
Types of IPRs:
Trademark
• Trademark protects any word, name, logo or device used to identify, distinguish
or indicate the source of goods or services
• Includes trade dress (the total image and overall appearance of a product) and
product configuration (the shape if non functional)
• The purpose is to safeguard the integrity of products and to prevent product
confusion and unfair competition
• The term of protection (initial registration and each renewal of registration of a
trademark shall be for a term of no less than 7 years)
Types of IPRs:
Geographical Indications (GIs)
• GIs are denominations that identify a good as originating in a region or locality,
where the reputation and quality of good is essentially attributable to its
geographical origin (for example: Darjeeling tea of India)
• GIs aim at identifying and protecting products on the basis of their geographical
location. They usually consist of the name of the place of origin. For instance,
‘Tuscany’ for olive oil produced in a specific area of Italy, ‘Darjeeling Tea’ for
tea produced in the Darjeeling region of India.
• TRIPS prohibits the use of GIs in such a way as to cause deception and provides
for injunctive relief, refusal of trademark registration, etc
Types of IPRs:
Geographical Indications (GIs)
• Thus, this definition specifies that the quality, reputation or other characteristics
of a good can each be a sufficient basis for eligibility as a geographical
indication, where they are essentially attributable to the geographical origin of
the good)
• Exceptions such as Countries are not obliged to bring a geographical indication
under protection, where it has become a generic term for describing the product
in question
• The term of protection - A Geographical Indication is registered for a period of
10 years and the registration may be renewed from time to time for a period of
10 years at a time.
Types of IPRs:
Industrial designs
▪ Protects the artistic aspect (namely, texture, pattern, shape) of an object
instead of the technical features
▪ The term of protection (amount to at least 10 years)
▪ ‘Amount to’ allow the term to be divided into two periods (for example
two periods of five years)
▪ The third party is prohibited from making, selling or importing articles
bearing a design which is a copy of the protected design, when such acts
are undertaken for commercial purposes
▪ Exception: optional mandate, if introduced then such exceptions do not
unreasonably conflict with the normal exploitation of protected industrial
designs and do not unreasonably prejudice the legitimate interests of the
owner of the protected design
▪ This intellectual property right is applied to a wide variety of products of
industry and handicrafts, for instance jewelry, watches
Types of IPRs:
Patents
▪ The TRIPS Agreement requires Member countries to make patents
available for any inventions, whether products or processes, in all fields
of technology without discrimination, subject to novelty, inventiveness
and industrial applicability
▪ Invention to be novel, useful and non-obvious
The agreement allows countries to exclude inventions from
patentability on following grounds:
▪ Inventions necessary ‘to protect ordre public or morality; including to
protect human, animal or plant life or health or to avoid serious prejudice
to the environment’. this explicitly includes inventions dangerous to
human, animal or plant life or health or seriously prejudicial to the
environment.
Types of IPRs:
Patents
▪ Both the product as well as the process of creating the product can be
patented. For instance, if a person has invented an electric door lock,
which is a new innovation, is functional and shows inventive skills, then it
can be patented. If the product (lock) is patented, it is a product patent. If
the process by which it was created is patented, it is a process patent.
▪ The second exception is that Members may exclude from patentability
diagnostic, therapeutic and surgical methods for the treatment of humans
or animals (Article 27.3(a)
▪ The third is that Members may exclude 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.
Types of IPRs:
Patents
▪ Diagnostic, therapeutic and surgical methods for the treatment of humans
or animals
▪ 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
▪ Limited Exceptions
▪ Compulsory Licensing
▪ The term of protection (for a period of 20 years counted from the filing
date)
Types of IPRs:
Layout-designs of integrated circuits and trade secrets
▪ It refers to mask works (topographies) of the integrated circuits, the
stencils used to etch or encode an electrical circuit on a semiconductor
chip
▪ Protection conferred to “original” layout-design/topographies
▪ Exclusive rights include the right of reproduction and the right of
importation, sale and other distribution for commercial purposes
▪ The term of protection (ten years form the date of first commercial
exploitation)
Types of IPRs:
Protection of undisclosed information
• The protection must apply to information that is secret, that has
commercial value because it is secret and that has been subject to
reasonable steps to keep it secret
• Trade secrets consist of formulae, patterns, process or compilation of
information. (for example the formula for a sports drink)
• In most countries, they are not subject to registration but are protected
through laws against unfair competition
Exhaustion of IPR
Two main competing theories:
• Universal or international exhaustion theory: An IPR holder’s right are
exhausted on the first sale of the protected product anywhere in the world
• Domestic or territorial exhaustion theory: The right holder’s IP are not
exhausted until after the first sale of the product in the territory in which he
holds the rights

Exhaustion of IPR
• The resolution of exhaustion issues is left to national laws and there are no
international or customary law norms in this area
• First sale doctrine
• National vs. International exhaustion
• Regional exhaustion
• Special case of pharmaceutical products and Doha clarification.

Main feature of the agreement
• Standards: The agreement expresses minimum standards of protection

(I) The subject matter to be protected
(II) The rights to be conferred and permissible exceptions
(III) The minimum period of protection
• Enforcement
➢ Provisions for domestic procedure and remedies for the enforcement of
the IPRs
➢ Includes general principle applicable to IPR enforcement procedure
apart from administrative, civil and criminal procedure available for
enforcement of rights of the right holder
• Dispute settlement: The agreement further provides for the settlement of
disputes over IPR among the member states within the parameters of
dispute settlement procedure.
Institutional arrangements
• Council for Trade Related Aspects of Intellectual Property Rights (TRIPS)
• Dispute Settlement Body (DSB)
• Current Negotiations in special sessions (SS)
Public policy implications

• Benefits and costs of higher IP standards for developing countries
• Protection of traditional knowledge and culture
• Biological diversity
• Health
• Food
• Investment and transfer of technology
Provisions relating to developing countries
• Transitional arrangements
• Developed countries to provide
1. Incentives for transfer of technology to Least Developed Countries
(LDCs)
2. Technical assistance and financial support to developing countries in
preparing laws and regulations on protection and enforcements of
IPRs
General Agreement on Tariffs and Trade (GATT)
• The General Agreement on Tariffs and Trade (GATT) is a legal agreement
between many countries, whose overall purpose was to promote international
trade by reducing or eliminating trade barriers such as tariffs or quotas.
• According to its preamble, its purpose was the "substantial reduction of tariffs
and other trade barriers and the elimination of preferences, on a reciprocal and
mutually advantageous basis.“
• The GATT was first discussed during the United Nations Conference on Trade
and Employment and was the outcome of the failure of negotiating
governments to create the International Trade Organization (ITO). It was signed
by 23 nations in Geneva on October 30th, 1947, and was applied on a
provisional basis January 1st, 1948.
• It remained in effect until January 1st, 1995, when the World Trade
Organization (WTO) was established after agreement by 123 nations in
Marrakesh on April 15th, 1994, as part of the Uruguay Round Agreements.
• The GATT, and its successor the WTO, have succeeded in reducing tariffs. The
average tariff levels for the major GATT participants were about 22% in 1947,
but were 5% after the Uruguay Round in 1999. Experts attribute part of these
tariff changes to GATT and the WTO.
• The GATT was first conceived in the aftermath of the Allied victory in the
Second World War at the 1947 United Nations Conference on Trade and
Employment (UNCTE), at which the International Trade Organization (ITO)
was one of the ideas proposed.
• It was hoped that the ITO would be run alongside the World Bank and the
International Monetary Fund (IMF). More than 50 nations negotiated ITO and
organizing its founding charter, but after the withdrawal of the United States
these negotiations collapsed.
• Foundation- GATT was signed by 23 nations in Geneva on October 30, 1947
and took effect on January 1, 1948.
• It lasted until the signature by 123 nations in Marrakesh on April 14, 1994 of
the Uruguay Round Agreements, which established the World Trade
Organization (WTO) on January 1, 1995.
• Outcome of the failure to set up ITO .
GATT?? Treaty or Organization ?
• Was the outcome of the failure of negotiating governments to create the ITO
• The Bretton Woods Conference introduced the idea for an organization to
regulate trade as part of a larger plan for economic recovery after World War II
• As governments negotiated the ITO, 15 negotiating states began parallel
negotiations for the GATT as a way to attain early tariff reductions
• Once the ITO failed in 1950, only the GATT agreement was left.
Objectives
• To provide an international forum

• That encouraged free trade between member states
• By regulating and reducing tariffs on traded goods
• Providing a common mechanism for resolving trade disputes.
• Rise standard of living
• Ensure full employment and a large and steadily growing volume of real
income and effective demand
• Developing full use of the resources in the world economically
• Expansion of production and international trade.
Functions of GATT
• Trade negotiations under GATT
• Safeguards
• Trade negotiations among developing countries
• Solve trade disputes
Five key points of GATT

1. trade barriers should be lowered in general and quotas should be eliminated
2. trade barriers should be applied on MFN basis – no discrimination among
trading partners
3. national treatment – imported goods treated same as domestic goods
4. tariff concessions, once made, cannot be rescinded without compensating trade
partners, and new barriers cannot be erected in place of lowered tariffs
5. trade disputes to be settled by consultation
Safeguards
• The agreement also provides proper safeguards for the domestic industry and
trade
• Article XIX of the general agreement permits a member country to impose
restrictions on imports or suspend tariff concession on products if they are
import excessive quantities and are causing or threatening to cause serious
injury to competing domestic producers
Principles
1. Trade without discrimination: Country granting advantages (tariff and
subsidies) to one non GATT party must grant the same advantages to other
member countries in export and import duties and changes. Exceptions: In case of
regional trading arrangements and the developing nations
2. Protection through tariff- Protection to home industries can provided only
through customs tariff and not through any other. Exceptions: Developing nations
where development need more imports
Commodities which would be covered by the agreement and freezing existing tariff levels
Year Place / Subjects Covered Countries
Name
1947 Geneva Tariffs 23
1949 Annecy Tariffs 13
1951 Torquay Tariffs 38
1960 – 1961 Dillon Tariffs 26
Round
1964 – 1967 Kennedy Tariffs and Anti-Dumping Measures 62
Round
1973 – 1979 Tokyo Tariffs, Non-tariff Measures, Framework 102
Round Agreements
1986 – 1994 Uruguay Tariffs, Non-tariff Measures, Rules, 123
Round Services, Intellectual Property, Dispute
Settlement, Textiles, Agriculture,
Creation of WTO
Phases
Phase 1
Commodities which wound be covered by the agreement and freezing existing
tariff levels.
Year Place name Subject covered No of countries
1949 Annecy Tariffs 13

1951 Torquay Tariffs 38
Phase 2
Focused on reducing the tariff
1960 – 1961 Geneva Dillon round Tariffs 26
1964-1967 Geneva Kennedy round Tariffs and anti-dumping measures 62

1973-1979 Geneva Tokyo round Tariffs, non-tariff measures, framework of 102
agreement
Phases
Phase 3
Extended the agreement fully to new areas such as intellectual property, services,
capital and agriculture. Out of this round the WTO was born
1986 – 1994 Uruguay Tariffs, Non-tariff Measures, Rules, Services, 123
Round Intellectual Property, Dispute Settlement,
Textiles, Agriculture, Creation of WTO

Achievements
Achievements
Trade barriers
• While free trade maximizes world welfare, most nations impose some trade
restrictions that benefit special groups in the nation. The most important type
of trade restriction historically is the tariff.
• This is a tax or duty on the import or export.
• When a small nation imposes an import tariff, the domestic price of the
importable commodity rises by the full amount of the tariff for individuals in
nation.
• As a result of domestic production of the importable commodity expands while
domestic consumption and imports fall. However, the nation as a whole faces
the unchanged world price since the nation itself collect the tariff.
Achievements
• Continual reductions in tariffs helped spur very high rates of world trade growth
during the 1950s and 1960s — around 8% a year on average
• Trade growth consistently out-paced production growth
• The rush of new members during the Uruguay Round demonstrated recognition
of multilateral trading system as the anchor for development and an instrument
of economic and trade reform.
Success of GATT
• Huge increase in world trade
• New members from 23-110
• Enormous reductions in tariffs
GATT and impact in India.
• Global output of Indian Agriculture, pharmaceutical were 4th in terms of
volume and 6th in terms of value.
• Output of Agriculture, pharma products
• In 2021- 476 billion, In 2022- 510 billion (Agriculture)
• Bulk drug (21%), Formulation 79%.
• GATT- Strengthen R&D capabilities during 10 years transitional period.
• Strategical alliance with researched based companies abroad for setting up
of now joint ventures in India.
International treaties and conventions on patents
Intellectual property (IP) laws are almost always national in nature. However, there
are many conventions and treaties under which nations agree to provide minimum
levels of IP protection, and to protect IP created by nationals of other countries.
The World Intellectual Property Organization (WIPO) administers over 8 treaties
and conventions on the registration, classification and protection of IP.
1. Paris Convention for the Protection of Industrial Property 1883
2. Berne Convention for the Protection of Literary and Artistic Works 1886
3. Patent Cooperation Treaty (PCT) (1970)
4. Madrid Agreement Concerning the International Registration of Marks (1891) and
the Protocol Relating to the Madrid Agreement (1989)
5. Hague Agreement concerning the International Registration of Industrial Designs
(1925)
6. Trademark Law Treaty (TLT) (1994)
7. Patent Law Treaty (PLT) (2000)
8. Strasbourg Agreement Concerning the International Patent Classification (1971)
1. Paris Convention for the Protection of Industrial Property 1883:
The first convention to harmonize the IP laws of its contracting states, it applies to
patents, trade marks, industrial designs, utility models, trade names and
geographical indications. It currently has 174 contracting states. The key provision
of this convention is that each contracting state must grant the same protection to
nationals of other contracting states as it does to its own nationals.
2. Berne Convention for the Protection of Literary and Artistic Works 1886
This is the key copyright convention. It currently has 165 contracting states. A
key provision of this convention is that works originating in one contracting state
must be given the same protection by other contracting states as they give to
works of their own nationals.
3. Patent Cooperation Treaty (PCT) (1970)
An applicant from a contracting state can seek patent protection in many
countries at once, by filing an 'international' patent application. The PCT
currently has 144 contracting states.
4. Madrid Agreement Concerning the International Registration of Marks (1891) and
the Protocol Relating to the Madrid Agreement (1989)
Any state which is a contracting party to the Paris Convention can use the Madrid system
for filing trade marks. This is essentially an international registration procedure which
enables trade mark owners to register trade marks in a number of countries worldwide.
On the basis of a home registration or application for registration, a trade mark owner can
apply to the International Bureau of WIPO in Geneva for a so-called international
registration, specifying the countries in which protection is required. Details of the mark
are forwarded to the trade mark offices of the countries where protection is sought, which
then register (or refuse) the mark according to the rules existing in their countries at the
time. There are currently 56 contracting states to the Madrid Agreement and 84 to the
Protocol.
5. Hague Agreement concerning the International Registration of Industrial Designs
(1925)
Anyone from a contracting state can file an application for an international design
registration. There are three relevant Acts: of 1934 (the London Act), 1960 (the Hague
Act) and 1999 (the Geneva Act). It currently has 60 contracting states.
6. Trademark Law Treaty (TLT) (1994)
The TLT aims to streamline and harmonize trade mark applications in its 50
contracting states.
7. Patent Law Treaty (PLT) (2000)
The PLT aims to streamline and harmonies patent applications in its 32
contracting states. A treaty providing common and, as a general rule, maximum
requirements for many of the formality matters involved in the procedures before
national/regional patent offices.
8. Strasbourg Agreement Concerning the International Patent Classification
(1971)
A regularly updated international system for classifying inventions in patent
applications in all fields of technology, allowing more efficient searching and
retrieval of patent information. (Further information on the International Patent
Classification (IPC) established by the Strasbourg Agreement
Other related agreements are
• Nice Agreement concerning the International Classification of Goods and
Services for the Purposes of the Registration of Marks (1957)
• Vienna Agreement Establishing an International Classification of the Figurative
Elements of Marks (1973)
• Locarno Agreement Establishing an International Classification for Industrial
Designs (1968)
• International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations (the Rome Convention) (1961)
• Agreement on the Trade-Related Aspects of Intellectual Property Rights
(TRIPS) and WIPO–WTO Cooperation
• TATAs SEEK PATENT SECURITY FOR NANO
WHAT IS AN INVENTION?
AGAINST COPYCATS
"Invention" means any
• MUMBAI: Tata Motors has applied for patent
• (i) new product or process,
protection for over 37 inventions and
• (ii) involving an inventive
innovations linked to its high-profile affordable
step and
car, Nano, in an aggressive move to protect the
• (iii)capable of industrial
brand against imitation in the ultra-competitive
application.
car industry. It is also close to filing intellectual
property rights (IPRs) claims for Nano in
CRITERIA FOR PATENTING:
overseas markets, company officials said.
A. Novelty
• The company has used a number of new
B. Inventive step
concepts and ideas to develop this vehicle and
C. Capable of industrial
patents will help in protecting some of its
application
innovative ideas, according to officials close to
the development
NOVELTY
• The invention should not have been published in India or elsewhere.
• The invention should not have been in prior public knowledge or public use
in India.
• Exception: display in public exhibition or paper presented before a learned
society but within twelve months patent application should be filed.
INVENTIVE STEP
"Inventive step" means a feature of an invention that involves technical
advancement as compared to the existing knowledge or having economic
significance or both and that makes the invention not obvious to a person
skilled in the art.
The question, 'is there any inventive step?' arises only if there is novelty.
CAPABLE OF INDUSTRIAL APPLICATION
Capable of industrial application, in relation to an invention means that the
invention is capable of being made or used in an industry.
NOT PATENTABLE IN INDIA
• The patentability requirement in India, is, the invention should be
novel, inventive and capable of industrial applicable. However,
one can not get patent for all the inventions even though which
meets all the above criteria, and section (3) and (4) under paten t
act has long list of area which are not patentable in India. This
section has been obstacle for not less than 50,000 inventions
which are eligible for registering patent
• According to Section 3 of the (Indian) Patents Act, 1970 The
following are not patentable in India:-
• An invention, that is frivolous or that claims anything obviously
contrary to well established natural laws;
• An invention, the primary or intended use of which would be
contrary to law or morality or injurious to public health;
NOT PATENTABLE IN INDIA continued….
• The mere discovery of a scientific principle or the formulation of an
abstract theory.
• The mere discovery of any new property or new use for a known
substance or of the mere use of a known process, machine or
apparatus unless such known process results in a new product or
employs at least one new reactant.
• 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.
• The mere arrangement or rearrangement or duplication of known
devices, each functioning independently of one another in a known
way.
• A method of agriculture or horticulture.
NOT PATENTABLE IN INDIA continued…
• Inventions relating to atomic energy within sub-section(1) of Section 20 of the
Atomic Energy Act,1962.
• Any process for the medicinal, surgical, curative, prophylactic or other
treatment of human beings or animals.
• 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.
• Mathematical or business method or a computer program perse or
algorithms.
• Literary, dramatic, musical or artistic works, cinematographic works,
television productions and any other aesthetic creations.
• Mere scheme or rule or method of performing mental act or playing game.
• Presentation of information. Topography of integrated circuits.
• An invention which in effect, is traditional knowledge or is based on the
properties of traditional knowledge.
WHO CAN APPLY FOR A PATENT?
An application for a patent may be submitted by:
• Any person claiming to be the true and first
• inventor of the invention.
• Any person being the assignee of the person claiming to be the true and first
inventor in respect of the right to make such an application.
• By the legal representative of any deceased person who immediately before
his death was entitled to make such an application.
WHERE TO APPLY
For applicants resident in India, appropriate off ice is determined according to
any of the following:
➢ place of residence/business/origin of invention.
➢ For applicants not resident in India or with no place of business in India,
appropriate office would be according to the address for service given in
the application form.
PATENT OFFICE
• Head Office - Kolkata Branch offices at
➢ Mumbai
➢ Delhi
➢ Chennai
• The Patent Office comes under the Ministry of Commerce & Industry.
• Each of the branch offices have their own fixed territory and accept application
forms from areas lying within its geographical limits.
FEES:
❖ The fees payable under section 142 in respect of the grant of patents and
applications therefore, and in respect of other matters for which fees are
required to be payable under the act shall be as specified in the first schedule.
❖ The amount of the fees varies from 1000-4000.
❖ The fees, payable under the act may either be paid in cash or may be sent by
bank draft or cheque pay able to the controller of patents.
Method of application of patent
• Patent is an exclusive right granted by the Authority to the applicant of an
invention for a limited period of time in lieu of full disclosure of his invention
• An application for a patent for an invention may be made by a person
• Who claiming to be the true and first inventor of the invention or his assignee.
• By the legal representative of any deceased person who immediately before
his death was entitled to make such an application.
Filling of an application form

• There is only one application field for one invention
• This must be done in a prescribed form along with the prescribed fees in the
appropriate patent office
• It should be accomplished by provisional or a complete specification
• If the application is filed by the assignee, it must be accompanied with the proof
of the right to make the application.
Filling of an application form
• The form of application for grant of an Indian patent ask for- Full name,
address, nationality of the applicants and inventor, Patent specification,
whether an application has been made or patent granted
• A convention country, which affords to citizens of India, or applications for
patents in India.
• Every such application (not being a convection application or an application
filed under the patent cooperation treaty designating India) shall be
accompanied by a provisional or a complete specification
Filling of Provisional and complete specification
• A specification is an accurate description of the patent stating how the
invention can be carried out by the method best known to the applicant. The
specification ends with a claim or claims defining the scope of the invention for
which protection is claimed.
• Every application must be accompanied by a provisional of complete
specification.
• It is possible to file the application with provisional specifications. But it is
necessary to file the complete specifications within one year of filing the
original patent application
• The twelve months limit can be extended to 15 months if an application made
to the controller with such request and the prescribed fee is paid.
OBTAINING A PATENT
File an application for patent
• With one of the patent offices based on territorial jurisdiction of the place of
office or residence of the applicant /agent
• Pay the required fee
• Information concerning application form and details of fee available
at www.ipindia.nic.in
• Guidelines for applicants also available on this website
FORMALITY CHECK
• An Examiner checks the formal requirements before accepting the application
and the fee - this is done immediately
• Issue of application number and the cash receipt - this is done the same day
• In case of receipt of application by post, cash receipt, application number is
sent by post within 2-3 days
PUBLICATION
❖ Application is kept secret for a period of 18 months from the date of filing.
❖ In 19th month, the application is published in the official journal- this journal is
made available on the website weekly.
❖ Applicant has an option to get his application published before 18 months also
❖ In that case, application is published within one month of the request.
REQUEST FOR EXAMINATION

➢ Application is examined on request.
➢ Request for examination can be made either by the applicant or by a third
party.
➢ A period of 48 months, from the date of filing, is available for making request
for examination.
EXAMINATION
Application is sent to an Examiner within 1 month from the date of request for
examination
Examiner undertakes examination with respect to.
• whether the claimed invention is not prohibited for grant of patent
• whether the invention meets the criteria of patentability
ISSUE OF FIRST EXAMINATION REPORT (FER)

• A period of 1 to 3 months is available to Examiner to submit the report to the
Controller
• 1 month 's time available to Controller to assess the Examiner's report
• First Examination Report (FER) containing list of the objections is issued within
6 months from the date of filing of request.
RESPONSE FROMTHE APPLICANT

• 12 months' time, from the date of issue of FER, is available to the applicant to
meet the objections
• If objections are met, grant of patent is approved by the Controller-within a
period of 1 month.
PRE-GRANT OPPOSITION
• After publication, an opposition can be filed within a period of 6 months
• Opportunity of hearing the opponent is also available
EXAMINATION OF PRE-GRANT OPPOSITION

• Opposition (documents) is sent to the applicant
• A period of 3 months is allowed for receipt of response
CONSIDERATION OF PRE-GRANT OPPOSITION
After examining the opposition and the submissions made during the hearing,
Controller may
➢ Either reject the opposition and grant the patent
➢ Or accept the opposition and modify/reject the patent application
This is to be done within a period of 1 month from the date of completion of
opposition proceedings.
GRANT OF A PATENT
• A certificate of patent is issued within 7 days
• Grant of patent is published in the official journal
• For a term of 20 years from the Date of filing the Patent Application
Stages of filling the grant of patent
FEE SCHEDULE
PATENT INFRINGEMENT
Patent infringement is the commission of a prohibited act with respect to a
patented invention without permission from the patent holder.
TYPES OF PATENT INFRINGEMENT

• Direct Infringement: The third party has willfully or intentionally stole the
technology from the inventor without his prior permission.
• Indirect Infringement: It refers to the unfair practice that does not give a clear
indication that the patent is bought and sold in the market.
BASIC FEATURES OF PATENT INFRINGEMENT

• Objectives of infringement
• Infringement behavior
• Violation of legal rules
PATENT INFRINGEMENT
Direct patent infringement: The most common form of infringement is direct
infringement, where the Invention that infringes patent claims is actually
described, or the Invention performs substantially the same function.
Indirect patent infringement: Another form of patent infringement is indirect
infringement, which is divided into two types:
• Infringement by inducement is any activity by any third party that causes another
person to infringe the patent directly. This may include selling parts that can only
be used realistically for a patented invention, selling an invention with instructions
to use in a certain method that infringes on a method patent or licenses an
invention that is covered by the patent of another. The inducer must assist
intentional infringement, but does not require intent to infringe on the patent.
• Contributory infringement is the sale of components of material that are made
for use in a patented invention and have no other commercial use. There is a
significant overlap with indications, but contributor violations require a high level of
delay. Violations of the seller must have direct infringement intent. To be an
obligation for indirect violations, a direct violation must also be an indirect act.
PATENT INFRINGEMENT
HOW TO JUDGE PATENT INFRINGEMENT?
A determination of patent infringement involves a two-step process:
• The claims are analyzed by studying all the relevant patent documents ;
• The claims must "read on" the accused device or process.
• In a word, the claims are tested to see whether they describe the accused
infringement.
REMEDIES OF PATENT INFRINGEMENT

• Monetary Relief
• Equitable Relief
• Cost & Attorney's Fees
PATENT INFRINGEMENT
Remedies for Patent Infringement
Patent infringement lawsuits can result in significantly higher losses than other
types of lawsuits. Some laws, such as the Patent Act, allow plaintiffs to recover
damages.
Monetary Relief: Monetary relief in the form of compensatory damages is
available to prevent patent infringement:
1. Indemnity compensation – A patent owner may have lost profits for
infringement when they established the value of the patent.
2. Increased damage – Up to three times, compensation charges can be
charged in cases of will or violation of will.
3. The time period for damages – The right to damages can be claimed only after
the date when the patent was issued and only 6 years before the infringement
claim is filed.
PATENT INFRINGEMENT
Remedies for Patent Infringement
Patent infringement is the illegal manufacture or usage of an invention or
improvement of someone else’s invention or subject matter who owns a patent
issued by the Government, without taking the owner’s consent either by consent,
license or waiver. Several remedies are available to patent owners in the event of
an infringement. Measures available in patent infringement litigation may include
monetary relief, equal relief and costs, and attorneys’ fees.
Equitable relief: Orders are issued by the court to prevent a person from doing
anything or Act. Injections are available in two forms:
1. Preliminary injunction – Orders made in the initial stage of lawsuits or
lawsuits that prevent parties from doing an act that is in dispute (such as
making a patent product)
2. Permanent injunction – A final order of a court which permanently ceases
certain activities or takes various other actions.
PATENT INFRINGEMENT
CASES ON PATENTS: APPLE VS SAMSUNG PATENT WAR
VERDICT
• Samsung Electronics flagship Galaxy Smartphone looks very similar to Apples
iPhone
• Jury has found Samsung guilty of infringing on Apple 's design patent
• Come in favor of Apple in the U.S $1.049 Billion
• Rejected all of Samsung's claims & Leading devices may be banned in the U.S
PATENT INFRINGEMENT
CASES ON PATENTS: APPLE VS SAMSUNG PATENT WAR
Apple files first:
• Apple Inc. sued Samsung for copying its product ideas
• 38-page suit filed by Apple in the U.S. District Court of Northern California
states
• Copied look, product design, Packaging
Samsung's turn:
• Samsung, the world's largest maker of smart phones, countersued Apple
saying that Apple infringes on several of its patents having to do with wireless
communications technology and camera phones.
PATENT INFRINGEMENT
CASES ON PATENTS: NOVARTIS PATENT PLEA
• Novartis is the world's leading pharmaceutical company filed
patent application for its new version of cancer drug (Glivec).
• Indian law bans firms from extending patents on their
products by making slight changes to a compound, a practice
known as "evergreening".
• The court held that the patent application is rejected on the
grounds that :
• Novartis has failed to meet stipulations under sections 3(d)
and 3(b) of the Indian Patent Law.
• Section 3(d) restricts patents for already known drugs
unless the new claims are superior in terms of efficacy
• Section 3(b) bars patents for products that are against
public interest and do not demonstrate enhanced efficacy
over existing products.
LEGAL IMPLICATION ON BIODIVERSITY
• Biological diversity is the hallmark of life on earth. It is very backbone of
sustainable development.
• The current Intellectual Property Rights (IPR) regime is encouraging
commercialization of seed development, monoculture, protection of new plant
varieties, microorganisms, and genetically modified organisms.
• As a consequence, our rich biogenetic diversity is being eroded irreversibly. We
must find out a path to make an alternative approach that will bring a balance
in between formal Intellectual Property (IP) system and sustainable aspects of
biodiversity.
• The initial step towards making biodiversity a commodity evolved from the
United Kingdom wanting to use high-quality seeds for agricultural production.
This slowly led to the Companies selling registered seeds. Later the
government rewarded individuals who improved seeds further. This led to the
development of Breeders’ Rights that become more commercialized and very
soon restrictive.
• In order to comply with the TRIPs (Trade Related Intellectual Property Rights)
and CBD (convention on Biological Diversity) India has passed Indian Patent
(Second Amendment) Act, 2002 and the Biological Diversity Bill, 2002
respectively. According to this Amendment Act, 2002 the duration of the term of
patent has been extended to 20 years for all product and process.
• Now microorganisms will be patentable subject in India. In addition, new plant
varieties will get PBR certification in India as India has joined recently in UPOV
(1978 Act). Earlier India has also passed Plant Protection Bill to develop a sui
generis system (a system of its own). The deposit of biological materials has also
been included in compliance with the Budapest Treaty.
• The Convention on Biological Diversity objectives are (1) to conserve biological
diversity, (2) to promote the sustainable use of its components, and (3) to
achieve fair and equitable sharing of the benefits arising out of the utilization of
genetic resources. 1 These objectives find expression in the provisions of the
CBD, many of which are affected, directly or indirectly, by IPRs.
• Trends starts with US patent act in 1930. Gave IPR for asexually reproduced
plant varieties.
• Patentable subject matter
• Novel- either by asexual cultivation or by the first person who sees it. Useful
industrial applications
• USPTO- cotton patent, soyabean patent.
• Fighting against monopoly- Kalpavriksh- a Delhi based NGO fight against
patenting and use in pharma industry of microbes from India.
• Turmeric, Neem, Basmati rice- GI act.
• Sec 3 of patent act
• Section 3J
➢ Method of agriculture and horticulture not patentable
➢ Plants and animals in whole or ant part there of other than micro organisms
but including seeds, varieties and species and essentially biological
processes from production or propagation of plants and animals.
• Sec 3 (b) of patent act
➢ Contrary public order or morality
➢ Cause serious prejudice to human, animal or plant life or health or to
environment
• Sec 3 (i) of patent act
➢ Process of Medical treatment of animals, to render them free of disease
➢ Research purpose, tutoring pupils, Government use.
• Biological diversity act 2002

❖ Sec 6 – No person shall apply for any intellectual property right, by whatever
name called in or outside India for any invention based on any research or
information on a biological resource obtained from India without obtaining the
previous approval of the National biodiversity Authority before making such
application.
• Plant breeding rights (PBRs)
❖ Plant breeders rights (PBRS) are rights granted to plant breeders to exclude
others from commercializing material of the plant varities they have
developed. For a plant varities to be eligible for protection through PBRs, it
must be clearly distinguished from other protected varieties, Uniform and
Stable (DUS).
❖ Traditional Knowledge or Indigenous Knowledge refer to the local
knowledge by indigenous people that is unique to a given culture or society.
Indigenous people are the source of virtually all our knowledge about the
uses of the plant and animals.
• The convention of Biological Diversity (CBD) in 1992.
• The agreement on trade-related aspects of Intellectual property right
TRIPS) in 1994
• The international convection for the protection of New varieties of plants-
1961. (UPOV)
• The Budapest Treaty on the international recognition of the deposit of the micro-
organisms for the purposes of patent procedures (1980).
• India is founder member of WTO, India has already restructured various sections
and articles of Indian Patent Act, 1970 to accommodate various obligations of
TRIPS, It has amended three times (1999, 2002 and 2005) in recent past so far.
• These amendments have serious impact on biodiversity of India. The future

biotechnological research and development will be guided and be driven by this
new IPR regime.
Following are the patentable subjects in India now after those
amendments:
• Process for curative, prophylactic, diagnostic, therapeutic or other
treatment of plants (to render them free from diseases and pests).
• Process / method of preparing Genetically Modified Organisms (GMOs)
• The living entity of artificial origin such as micro-organism, vaccines are
considered patentable.
• The biological material such as recombinant DNA, Plasmids and,
processes of manufacturing thereof are patentable provided they are
produced by substantive human intervention.
• Gene sequences, DNA sequences without having disclosed their functions
are not patentable for lack of inventive step and industrial application.
• The processes relating to micro-organisms or producing chemical
substances using such micro-organisms are patentable.
Impact of IPR on Biodiversity
• The criteria for awarding PVP (Plant Variety Protection) laws allows
breeders to protect the varieties with very similar characteristics, which
means the system tends to be driven by commercial considerations of
product differentiation and planned obsolescence, rather than genuine
improvements in agronomic traits.
• Similarly, the requirements for uniformity (and stability) in UPOV type
systems exclude the local varieties developed by farmers that are more
heterogeneous genetically, and less stable. But these characteristics are
those that make them more adaptable and suited to the agroecological
environments in which the majority of poor farmers live.
Impact of IPR on Biodiversity
• Another concern is the criteria for uniformity. While proponents argue that
PVP, by stimulating the production of new varieties, actually increases
biodiversity but in reality requirement for uniformity, and the certification of
essentially similar varieties of crops, will add to uniformity of crops and
loss of biodiversity.
• Moreover similar concerns have arisen in respect of greater uniformity
arising from the success of Green Revolution Varieties, leading to greater
susceptibility to disease and loss of on field biodiversity.
Benefit Sharing
• The use and economic exploitation of genetic resources (and related TK)
has brought a wide range of benefits to developing and developed
countries alike, including economic benefits.
• The main challenge to be confronted in implementing the ABS (Access &
Benefit Sharing) principles under the CBD is to determine how the
benefits (in terms of sharing research results, capacity building, monetary
income, IPRs, etc.) are to be effectively shared among users and
providers of these materials.
• Benefit-sharing mechanism must be properly devised, which should
reward the conservers of genetic resources Formation of Group (like
trade block) of mega-biodiverse countries.
Benefit Sharing
• More emphasis should be given on traditional farming and procedures and
extensive R & D must be done for the same Complete Biodiversity
documentation of India and area wise biodiversity registers along with its
associated traditional knowledge should be done as soon as possible to stop
biopiracy in the name of bioprospecting by various multinational companies.
• Biodiversity Information System (BIS) in the Perspective of IPR should be
created. Recognising the available strengths for animal genetic resources
and generation of competitive technology in farm animals, poultry and fish in
the country, and also realising that appropriate IP protection laws in this area
are lacking, steps should be initiated on the analogy of Protection of Plant
Varieties and Farmers' Rights Act, 2001 so that in future animal and fish
breeds/strains and also farmers' rights on these genetic resources are
protected by law. Awareness generation is important for confidence building.
FARMERS RIGHT
• Farmers’ are an important part of the economic, social, and political fabric of the
society in developing countries. In India the contribution of Agriculture in terms
of livelihood and as a source of employment is significant.
• Rural areas in India are inhabited by people who are dependent for their
livelihoods on agriculture. In India agriculture is carried out mostly in the rural
areas where small farmers dominate food production by using traditional
agricultural practices. The rural communities are contributors of land races and
farmer’s varieties and in breeding of new varieties.
• Innovative breeding techniques in
agriculture resulting in new varieties are
rewarded through Intellectual Property
Rights (IPRs). IPR in the context of
agriculture could be provided either
through a patent or a sui generis system
for plant varieties protection.
FARMERS RIGHT
International Regime for Protection of Plant Varieties
• TRIPS Agreement: Article 27 of TRIPS Agreement requires patent protection to be made
available for both process and products, in all fields of technology. Article 27.3(b) of TRIPS
obliged the member countries to provide either patent protection or an alternative effective
sue generis system or a combination of both for protection of plant varieties. Thus, TRIPS
gives discretion to the member countries to determine the kind of protection for plant
varieties.
• UPOV (Union pour la Protection des Obtentious Vegetals (Union for Protection of New
Varieties of Plant) The UPOV Convention (1961, 1978, 1991) have recognised the
protection of the plant breeders’ rights. UPOV 1961 is the first international treaty regarding
intellectual property protection to plants. UPOV 1961 provides that breeder may be granted
only one type of protection either through a special title of protection or a patent.
• The International Treaty on Plant Genetic Resources for Food and Agriculture for
(PGRFA) Treaty PGRFA Treaty adopted in 2001 provides for recognition of farmers’ rights
without providing any property rights for farmers over their knowledge. The recognition is on
the basis of farmers’ contribution for the conservation and development of plant genetic
resources thereby constituting the basis of global food and agriculture production.
FARMERS RIGHT
International Regime for Protection of Plant Varieties
• Convention on Biological Diversity (CBD): The aim of CBD is to promote biodiversity
and to implement mechanism for benefit sharing The Convention on Biodiversity 1993
provides that access to genetic resources must give rise to benefit sharing mechanism.
Article 15 (5) of the Convention of Biodiversity provides for access to genetic resources
subject however to prior informed consent of the contracting party providing such
resources unless otherwise determined by that party.
• Farmers’ contributions to the development of plant genetic resources Farmers may
have little or no understanding of the scientific basis of genetic diversity, but they certainly
understand its paramount importance to agriculture, and the need for promoting variability
in agricultural practices.
• Social construction of farmers’ rights Despite the intellectual efforts needed to create
improved variability in a wide array of local varieties, the concept of intellectual property
rights (IPR) extended to new plant varieties has virtually ignored the contributions of
farmers.
FARMERS RIGHT
Construction of farmers’ rights in the international policy arena
• The context of plant variety protection: IPR that are granted to breeders of plant
varieties are referred to as plant breeders’ rights (PBRs). The International Convention
for the Protection of New Varieties of Plants (UPOV Convention) is the earliest system
for plant variety protection and is currently adhered to by 69 countries. PBRs allow a
plant breeder to exclude others from the production, processing, stocking, distribution,
marketing, sale, export and import of propagating material of a protected variety for a
specified number of years.
• The context of the International Undertaking and the International Treaty: While
recognizing PBRs on plant varieties, the inter-governmental Commission on Genetic
Resources for Food and Agriculture (CGRFA) also approved farmers’. rights in a
resolution on the interpretation of the International Undertaking on Plant Genetic
Resources for Food and Agriculture (IUPGRFA) in 1989 (FAO, 1989). Its primary
objective for recognizing farmers’ rights was to ensure that farmers would continue to
contribute to the conservation and sustainable use of PGR for strengthening the global
food and nutritional security.
FARMERS RIGHT
Farmers’ rights in the Indian PPVFR Act, 2001
Recognition of farmers as users, custodians and breeders :
• Protection of Plant Varieties and Farmers’ Rights Act (PPVFR Act) seeks to
address the rights of plant breeders and farmers on an equal footing. It
affirms the necessity of recognizing and protecting the rights of farmers with
respect to the contribution they make in conserving, improving and making
PGR available for the development of new plant varieties.
• The PPVFR Act also deems it equally necessary to protect PBRs to
stimulate investment for research and development, both in the public and
private sector, for the development of new plant varieties.
• Under the Act, PBRs allow breeders to hold exclusive rights to produce, sell,
market, distribute, import or export the propagating material of a registered
variety.
FARMERS RIGHT
Right 1: Access to seed: Farmers shall be entitled to save, use, sow, re-sow,
exchange, share or sell their farm produce, including seed of protected
varieties, in the same manner as they were entitled to before the coming into
force of the PPVFR Act. However, farmers shall not be entitled to sell branded
seed of a variety protected under this Act.
Right 2: Benefit-sharing: All Indian legal entities who provide PGR to

breeders for developing new varieties, including farmers, shall receive a fair
share of the benefits from the commercial gains of the registered varieties. Out
of all the national plant variety protection laws enacted since 2001, the PPVFR
Act is the first that integrates a provision for access and benefit-sharing (ABS)
along with PBRs.
FARMERS RIGHT
Right 3: Compensation Registered seed must be sold with full disclosure of
their agronomic performance under recommended management conditions.
When such seed is sold to farmers but fails to provide the expected
performance under recommended management conditions, the farmer is
eligible to claim compensation from the breeder through the office of the
PPVFR Authority.
Right 4: Reasonable seed price Farmers have the right to access seed of
registered varieties at a reasonable price. When this condition is not met, the
breeder’s exclusive right over the variety is suspended under the provision
concerning compulsory licensing, and the breeder is obligated to license the
seed production, distribution and sales of the variety to a competent legal
entity.
FARMERS RIGHT
Right 5: Farmers’ recognition and reward for contributing to
conservation Farmers who have been engaged in PGR conservation and
crop improvement, and who have made substantial contributions in providing
genetic resources for crop improvement, receive recognition and rewards from
the national gene fund. The gene fund receives resources from the
implementation of the Act, which in turn are complemented by contributions
from national and international organizations.
Right 6: Registration of farmers’ varieties The Indian PPVFR Act allows for
the registration of existing farmers’ varieties that fulfil requirements for
distinctness, uniformity, stability and denomination, but does not include that of
novelty. This right provides farmers with a one-off opportunity for a limited
period of time, from the moment when a crop species is included in the crop
portfolio under the PPVFR Act for registration. Once registered, these varieties
are entitled to all PBRs.
FARMERS RIGHT
Right 7: Prior authorization for the commercialization of essentially derived
varieties When farmers’ varieties, whether extant or new, are used by a third party as
source material for the development of an essentially derived variety, the farmers need to
provide prior authorization for its commercialization.
Right 8: Exemption from registration fees for farmers Under the PPVFR Act, farmers
have the privilege of being completely exempt from paying any kind of fees or other
payments that are normally payable for variety registration; tests for distinctness,
uniformity and stability (DUS), and other services rendered by the PPVFR Authority; as
well as for legal proceedings related to infringement or other causes.
Right 9: Farmer protection from accidental infringement If a farmer can somehow
prove before court that he or she was not aware of the existence of any rights at the time
of an infringement on any such rights, as detailed in the PPVFR Act, he or she will not be
charged. This provision is made in consideration of the centuries-old unrestrained rights
that the farmers had over the seed of all varieties, the novel nature of the PPVFR Act and
the low legal literacy of farmers.
FARMERS RIGHT
Current status of the implementation of PPVFR Act
The PPVFR Act has been in operation since 11 November 2005. Since then,
the PPVFR Authority has brought 43 crop species into its fold. By the end of
December 2010, the PPVFR Authority had received applications for the
registration of 841 new varieties belonging to 27 crops, 1222 applications for
the registration of extant varieties belonging to 24 crops, and 55 applications
for the registration of farmers’ varieties of seven crops.

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Module 4 Intellectual Property Rights

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Module 4: Intellectual property rights

• Trade secret protection is viable only so long as a secret remains .

Reverse engineering of the product presented to the public.

• Another undesirable aspect of trade secret protection is that there can be no

enabling publication if the trade secret protection is to continue.

• Universal or international exhaustion theory: An IPR holder’s right are

• Domestic or territorial exhaustion theory: The right holder’s IP are not

holds the rights

international or customary law norms in this area

• First sale doctrine

• National vs. International exhaustion

• Special case of pharmaceutical products and Doha clarification.

• Standards: The agreement expresses minimum standards of protection

Public policy implications

• To provide an international forum

Five key points of GATT

1949 Annecy Tariffs 13

1964-1967 Geneva Kennedy round Tariffs and anti-dumping measures 62

Year Place name Subject covered No of countries

1986 – 1994 Uruguay Tariffs, Non-tariff Measures, Rules, Services, 123

Round Intellectual Property, Dispute Settlement,

Textiles, Agriculture, Creation of WTO

Filling of an application form

REQUEST FOR EXAMINATION

ISSUE OF FIRST EXAMINATION REPORT (FER)

RESPONSE FROMTHE APPLICANT

EXAMINATION OF PRE-GRANT OPPOSITION

TYPES OF PATENT INFRINGEMENT

BASIC FEATURES OF PATENT INFRINGEMENT

REMEDIES OF PATENT INFRINGEMENT

• Biological diversity act 2002

• These amendments have serious impact on biodiversity of India. The future

Right 2: Benefit-sharing: All Indian legal entities who provide PGR to

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