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Intellectual Property Rights

Dr.Milind Dandekar
Intellectual Property Rights
• Introduction
• The Concept of Intellectual Property
• Different Types of IP
• Rationale behind Intellectual Property
• Balancing the Rights of Owner & Society
• Enforcement of IPR
• Issues before us regarding IPR
What is Intellectual Property ?
• Design ?
• Piece of Art ?
• Book ?
• Film ?
• Invention or Formula ?

Or just an idea?

Any thing created by man’s

Ingenuity, Knowledge & Skill
besides labor and capital
Concept of Property
• Lay mind : Some material object belonging to a
particular person.
• Concept of Ownership is critical to Concept of
• Ownership: Right to Possess, Use & Dispose at the
desire of the owner & to exclude others
• Society recognition is must
• Legal Definition : Bundle of rights that the law
confers on a person(s) by virtue of ownership and
possession of an object.
Types of Property
• Two types : Tangible & Intangible
• Tangible: Land ,Building etc… referred to as
Corporeal Property
• Intangible : Copyright, Idea, Innovation etc…
referred to as Incorporeal Property

Intellectual Property is Incorporeal Property and it

derives its value from ideas
IP is a dynamic area while corporeal property is a static
Classification of IP
• IP is generally divided into two categories
a) Industrial Property
b) Copyright

Industrial Property : Rights relating to Inventions, Industrial Designs

, Trade Marks, Geographical Indication & Appellation of Origin

Copyright : Rights relating to creation of human mind in the fields of

Literature, Music, Art and Audio-Visual works (Related Rights &
Neighboring Rights)
Seven types of IP
• TRIPS Agreement of the WTO recognizes seven types of
Intellectual Property Rights

1.Copyright & Related/Neighboring Rights

2.Trade Marks, Trade Names, Service Marks
3.Geographical Indications
4.Industrial Designs
6.Layout Designs of Integrated Circuits
7.Undisclosed Information

TRIPS : Trade Related Aspects Of Intellectual Property Rights

WTO : World Trade Organisation
• Copyright is granted for original, literary
musical, artistic or audio-visual works
• The creations of
authors,playwrites,composers,artists and
• It includes rights of reproduction,
communication to the public,
adaptation and translation of work
• Although originality in expression is a
requirement for copyright, the quality of
work is not an issue at all.
• Copyright subsists the work which is the
creation of idea(s);it is not the idea(s)
which is protected by copyright,but merely
the expression of the idea in the work
Example : Painting/Sunset
Research Paper Subject
Trade Marks/Names/Service Marks
• Trade Marks & Service Marks :
Distinctive Symbols of the company
• Trade Names :Name of the enterprise that
individualizes the name of the company
Both are protected as IP
Trade Mark to be Distinctive not Deceptive
No requirement in law for Quality Standard
Geographical Indications(GI)
• It is a sign used on goods that have a specific
geographical origin & possesses qualities /reputation
solely attributed to place of origin and is protected as IP
• A GI is different from a Trade Mark
GI – All producers producing in designated place can use
IPR.It also denotes indication of source & appellation
of origin
Trade Mark- Distinguishes Product/Services of enterprise
from others and exclude others from using the trade mark
Industrial Design
• The ornamental or aesthetic aspect of an
• Serves as a tool for product differentiation
• Attracts customers by enhanced visual
appeal and become IP to be protected
• Applied to wide range of products from
industry or handicraft
• A Patent is a statutory right granted for a limited period
to an inventor in respect of an invention to exclude any
other person from manufacturing, using or selling the
patented product or from using the patented process,
without due permission.
• Under the TRIPS Agreement of the WTO
inventions in all fields of Technology
Products or Processes are patentable if they meet the
criteria of Novelty, involve an Inventive step and are
capable of Industrial Application
Aim : Rewarding Intellectual Creativity for encouraging
economic and technological development
Layout Designs-Integrated Circuits
• Layout Designs(topography) of integrated circuits is
relatively new area in IP
• Has appeared with computer technology The
prgramming instructions on a computer chip are
implemented through a circuitry printed on
semiconductor materials.The design of circuitry on the
chip requires great investments of knowledge,skills and
capital and therefore needs to be protected as IP.
• Protected as IP against copying but improved design by
reverse engineering is regarded as fair.
• Criteria – Original-No Monopoly Right
Undisclosed Information
• Undisclosed Information gets recognition
as a kind of IP to be protected under
• It virtually restricts honest practices to
protection of trade secrets.
Rationale behind IPR
• IPRs are based on three premises :
1.Creative activity culminating in IP can be
increased by encouragement but not in
adequate quantity without economic incentives.
2.Adequate Economic Benefits as just rewards
for creation of IP through grant of Monopoly
Rights even if for limited period.
3.The provision of the Global IP regime to
ensure economic returns and safeguarding
interests of all concerned.
Balancing the Rights of
Owner & Society
• There can be no absolute rights in IP
because all individual rights are subject to
the recognition of the rights of other
individuals and the rights of the society.

• Role of State & purpose of Law :

Harmonize conflicting claims and achieve
• Protection of Individual Property is important but
it is equally important in a democratic polity that
the State creates condition and necessary
structure for wide spread access to opportunities
• Balancing responsibility of the State reflected in
the Indian Law
• Private Property is strongly respected and
legally protected, it is no more a fundamental
IP & Constitution of India
• The constitution of India under entry 49 of
Union list of matters mentions about
Patents, Inventions, Designs, Copyright,
Trade Marks & Merchandise;but it makes
no specific reference to IP
However IP as a form of property can be
put under Article 300A dealing with
property and be entitled to a legal right.
• Experts have indicated towards the
possible conflicts between IP, especially
the Copyright and the constitutionally
guaranteed freedom of speech and
• The Hon’ble Courts have zealously
upheld this fundamental freedom.However
such challenge has not yet been mounted.
Enforcement of IPR
• India and the TRIPS Agreement : India
has to a large extent complied with its
obligations under TRIPS through a series
of amendments to its existing laws and
through new legislations. However the
TRIPS agreement leaves some room to
deal with various issues at national level
such as definition of an invention,
exception to exclusive rights, compulsary
licences and others
New Legislations/Amendments to
Existing Legislations
1. The Trade Marks Act,1999
2. The Designs Act, 2000
3. The Protection of Plant Varieties and Farmer’s Rights Act, 2001
4. The Geographical Indication of Goods
(Registration & Protection) Act, 1999
5. The Semiconductor Integrated Circuits Layout Designs Bill, 1999
6. The Patents Act 1970,as amended by Patents(Amendment) Act,
7. The Copyright Act, 1957 togather with International Copyright
Order, 1999
All issues regarding IPR in India are governed by these legislations
Issues before Us
• What is a patentable Invention ?
“A new product or process involving an
inventive step and capable of industrial
• What is not patentable ?
Procedure for Obtaining Patent
• Who can apply ?
A person claiming to be the true and first
inventor of an invention
• Filing a Patent Application:
Only one application is filed for one invention
along with provisional or complete specification
The Specification must contain :
• Title, sufficiently indicating the subject matter
• Relevant drawings/graphics
• Full & particular description of invention
• Details of its operation or use and the method by which it
is to be performed
• Disclosure of the best method of performing the invention
• Claims defining the scope of the invention substantiated by
the disclosure
• Abstract providing technical information
• Declaration as to the inventiorship of the invention
Search for anticipation by previous
publication and by prior claim
• The search requires investigation for
1. Prior Applications
2. Patents Already Granted
3. Already Published or Claimed
4. Impugned one
• Any objection raised by the examiner are
to be removed by applicant within 12
Acceptance & Advertisement
• Controller of Patents notifies it to the
applicant and also advertises it in the
Official Gazette for public inspection
• From date of advertisement to the date of
sealing the patent, the applicant enjoys
the privileges and rights as if a patent had
been sealed on the date of advertisement
except the right of infringement.
Opposition to the grant of Patent
• Notice to Controller within 4 months from the date of
advertisement on following grounds :
1. Wrongfully obtained by the inventor
2. Anticipated in a specification filed for another patent
3. Publicly known in India before priority date of claim
4. Not an invention within the meaning of the Act
5. The information furnished is false
6. Geographical origin is not disclosed or falsely disclosed
7. Convention application not filed in India in prescribed
time for the same invention in a convention country
Grant of Patent
• Where the application for a patent has
been accepted w/o opposition or after
disposing the opposition, a patent shall be
granted if the applicant makes a request
within 6 months of advertisement.
• The patent so granted shall be sealed with
the seal of the patent office and the date
shall be entered in the register.
Rights of Patent
• Right to exploit the patent
• Right to grant licence etc
• Right to surrender
• Right to sue for infringement
• Purposes of Government
• For imparting instructions to pupils
• Medicine or Drug imported by the Government
for its use in hospital, medical institute, Lab,
maintained by or on behalf of the Government.
Difficulties Primarily Faced in Creation of
IPR in Academic & Research Institute:

1. Lack of knowledge regarding the

novelty/innovation of a research work
persuade by a scholar with respect to its
suitability for creation of IPR.
- Patent Search
2. Absence of systematic planning and
organizing of a research programme in
reference to filing of patent.
- To conceive the part or phases
of any developmental work
justifying its novelty/innovation.
3. Absence of knowledge regarding the
timely disclosure of invention to register
the right of inventor-ship/creatorship

4. Lack of idea regarding the type of

information, level of technicality and
extent of experience /data that can be
disclosed or made public by lecturing,
publication etc. without harming the
interest of the work with respect to its right
for IP.
5. Poor knowledge of preparation of
technical and legal write-up of a work to
justifying its suitability to register as IPR
prior to the legal consideration.

6. Non availability of legal staff / cell in

most of the academic institutes to prepare
and plead the case of IPR.
Immediate measures to be taken :

Activation of the system for

Development of Awareness, Attitude and

Culture for creation of IP
• The intellectual property thus vests in a creation of
human mind involving knowledge, labour and skill.
• It is the result of sustained intellectual application
and efforts by inventors/authors/artists
• Powerful factor of production and wealth
• Significant competitive advantage over rivals in the
trade and industry