IPRs

• IPRs are the rights given to people over the creations of

their minds.
• Individuals and business organizations earn profits either
through manufacturing or licensing and which is a
reward for their innovative efforts and acts as stimulus to
R & D efforts.
• John Armstrong, VP for science and technology at IBM in
his address at a conference held by National Research
Council’s office of International Affairs in January 1992
said that intellectual property act as
• i) Stimulus to innovations
• ii) vehicle for technology transfer
• iii) Attraction for financing
• Michael Porter in his work on ‘Competitive Advantage’
stated that differentiation is the key to business
competitiveness.
2
 Types of IPRs
Intellectual Property Rights has been divided into following types:
• Copyrights
• Geographical indications
• Industrial property
• Plant varieties and farmers’ rights
• Biodiversity and traditional knowledge
The Industrial property is again divided into many types like:
• Design
• Trademarks
• Patents
• Trade-Secrets
• Integrated Circuit layout design

3
Continued..
Patents for Inventions: It relates to new products or processes of manufacturing a product.

Trademarks for Product Differentiation: It identifies the product’s origin, its quality and its
manufacturer. It prevents others from using the trademarks within the designated territory.

Copyright for creative material: Protection given to the creator or an original work, ie. Literary
and artistic material, music, films, sound recordings, and broadcasts, including software and
multimedia and computer programming.

Designs for product shape and appearance: It covers protection for the whole or part of a product
appearance to the eyes, resulting from the features, lines, contours, colours, shape and texture

Trade secrets for information: This protection is for information such as formulas, patterns,
training programmes, methods, techniques, etc.

Geographical indications for place of origin: This protection is for the goods manufactured or
produced in a particular geographical area as the characteristics of the goods are due to the
climatic conditions of that particular region.

Integrated Layout circuit Design: Intellectual property covers the layout of circuit design on
semiconductor which is an integral part of every computer chip.

Plant varieties and Farmer’s Rights: It is for the protection of intellectual property rights for plant
varieties by granting rights to breeders, farmers and researchers.

4
Indian IPR Scenario
Intellectual property in India is well established at all levels- statutory,
administrative, and judicial. The following are the legislations covering IPRs in
India:
• Patents: The patents Act, 1970. The act was last amended in 203, 2004, and 2005
• Design: The Design Act, 1999.
• Trademarks: The Trade and Merchandise Marks Act, 1958. A new Trademarks
Act, 1999 has been enacted superseding the earlier one
• Copyrights: The Copyright Act, 1957 as amended in 983, 1984,1992,1994 and 1999.
• Geographical Indications: The Geographical indication of goods (Registration
and Protection) Act, 1999
• Layout design of integrated circuits: The semiconductor Integrated Circuit
Layout Design Act, 2000.
• Plant varieties and farmers rights: The Protection of plant varieties and farmers’
rights(PPVER) Act, 2001.
• Biological Diversity and Traditional Knowledge: Biodiversity Act, 2002
• Protection of disclosed information: No exclusive legislation exists but the
matter would be generally covered under the contract Law.

5
Legal Use of IP
• Use of IP depends on the IP rights under which it is protected and its
importance to its holder.
• Foreg: A bottle may have an appearance protected by a registered design
and/ or design right and it may also be sold under a trademark. Coke &
Bottle shape
• Motorbike may involve patent rights in several different aspects of the engine
and each patent may be owned by a different person.
• For using an IP, which is protected, one needs a license. This is largely
depend on what uses are permitted/restricted by the IP owner.
• For eg: copright gives the creator the right to control copying so another
creator who has independently thought of something similar, that is they
have not copied from the first creator, does not infringe the first person’s
rights. In copyright ‘rights’ are for ‘expression of idea’ and not for the ‘idea’
itself.
• Certain limited use of copyrighted material in education purpose, does not
infringe copyright.
• Doing something for experimental purposes relating to the subject matter of
an invention is not covered in the scope of infringement of a patent.

6
 Global Vs Indian IPR Landscape
• The General Agreement on Tariffs and Trade (GATT) was
established in 1948 with the objective of removing of trade
barriers, promotion of world trade and resolution of trade
related disputes.
• In the year 1970, this agreement was extended to include
technical standards and regulations, subsidies, anti-dumping
and government procurement
• The WTO’s agreement on Trade-Related Aspects of Intellectual
Rights (TRIPS) provides the guidelines of narrow the gap that
has occurred due to the differences amongst the member
countries.
• TRIPS laid down the guidelines on how patents, copyrights,
designs, trademarks should be protected where the cross-border
trade is involved.
• The following seven forms of IPR have been included in TRIPS
agreement and minimum standards have been prescribed for
each of them. Patents, Trademarks, Copyrights, Geographical
Indications, Industrial Designs, Layout designs for Integrated
Circuits, Undisclosed Information. 7
TRIPS-ITS Implication
TRIPS Agreement relating to patents are:
• The member countries to provide product patents in all fields
of technology without any exception.
• The duration of the patent to be uniform at least for a period
of 20 years.
• The grants of compulsory licence to be given on the basis of
individual merits of the case.
• The burden of proof in case of process patents leading to
production of new product to be placed on the defendant.
• Availability of patent rights are equally applicable, regardless
of whether products are locally produced or imported.
• Providing protection to micro-organism and micro-biological
processes.
• Enactment of an effective system for the protection of new
varieties.
8
Continued..
TRIPS Agreement covers five broad issues:
• How basic principles of the trading system and other
international intellectual property agreements should be
applied.
• How to give adequate protection to intellectual property
rights.
• How countries should enforce those rights adequately in their
own territories
• How to settle disputes on intellectual property between
members of the WTO
• Special transitional arrangements during the period when the
new system is being introduced.

9
Patent
• Patent means an official document giving the holder of the patent sole right to
make, use or sell an invention and preventing others from imitating it.
• Patents are generally granted to ‘inventions’. Inventions include both tangible
products as well as processes.
History of Patent:
• Italy was the first country to start Vatican Statute of 1474, under which the
Republic of Venice issued a degree by which new and inventive devices, once
they had been put into practice.
• In 1623, England followed with the statute of Monopolies under king James I
of England under which the king’s government would issue letter patent
registration to any person with a ‘monopoly’ to produce particular goods or
provide particular services.
• Subsequently in the United Kingdom, the Patents Act, 1977 harmonised UK
patent law with the European Patent Convention and it is no longer based on
the Statute of Monopolies.
• On April 10 1790, US President George Washington signed the Bill, which laid
the foundation of the Modern American Patent System.
• The Colonial patent law of 1911 secured the Indian market to British industry.
A large majority of drugs were imported from abroad until the patents act, 10
Criteria for Patent
* Novelty: Inventions must be new and previously not
known by others. Described in a printed publication in
any country. Disclosed to public who are not under an
obligation of confidentiality. Offered for sale.
• Usefulness: An invention must serve some useful
purpose. Inventions are not required to have commercial
value or be superior to other inventions that achieve
similar purposes.
• Non-obviousness: inventions could be made by merely
applying knowledge clearly present in a prior art. Prior
art includes patents, publications and general knowledge
in the fields.

11
Types of Patent
Utility Patent:
• Utility patent applies to the way something is made
• A manufactured article: Nail cutter or spanner
• A machine: washing machine, television, compressor, car or grass cutter
• Composition of matter: Paint, hair dye, medicine
• A process for making or doing something: A method for making steel or sugar
refining, or a protocol for managing investment accounts. A new use of an old
machine can be patented as a process

Design Patent:
• It covers a new and original ornamental shape or a surface treatment of a
manufactured article.
• Foreg: the cut of a dress or the shape of a table lamp or an automobile body may be
protected by a design patent which is covered under Indian Design act.

Plant Patent:
• Applies the characteristics of a new plant that has been asexually reproduced( by
grafting or selective cuttings – without seed manipulation.)
• New method of plant, irrespective of the method of reproduction, can also be the
subject of a utility patent.
• The new Indian Patent law provides for granting of patents in ‘Utility Patents’, ie.
New, useful, or improved processes, machines, apparatuses, articles of
manufacture, or compositions of matter.
12
 Indian Patent Act, 1970
The various Patent (Amendment) Bills (1999-2005) are the
culmination of all the research efforts and consultation by
the government, some of the objectives of the Bills are:
• To define the term ‘invention’ in consonance with
international practices and consistent with TRIPS
Agreement.
• To align the rights of the patentee with Article 28 of the
TRIPS Agreement;
• To provide a uniform term of patent protection of twenty
years for all categories of invention as per Article 33 of the
TRIPS Agreement
• To make provision for enabling persons other than the patent
holder to obtain marketing approval from the appropriate
regulatory authorities within three years before the
expiration of the term of the patent. 13
 Continued..
The salient features of the new Act are:
• Applicability of product patents from January 01, 2005.
• Term of the patent for all inventions has been extended to 20 years from the
date of the application.
• Patent applications will be published after 18 months from the date of
application.
• In relation to computer programs, object-oriented software will now be
patentable.
• There must be a single patent in respect of single invention
• Patent must be in respect of invention
• Patent may be in respect of a substance or a process.
• Patent cannot be divided into parts by saying that one connects to substance
and other to the process.
• A method or process of testing during the new process of manufacture will
now be patentable
• Time for putting the application in order for acceptance has now been reduced
from 15 or 18 months to 12 months.
14
 Continued..
Under the Indian Patent Act, 1970, certain inventions are not patentable. These
are
• Invention, the primary or intended use of which would be contrary to law or
morality or injurious to public health.
• More discovery of a scientific principle or the formulation of an abstract
theory.
• Substance obtained by a mere addition of mixture resulting only in the
aggregation of the properties of the components thereof or a process for
producing such substance.
• Mere arrangement or rearrangement or duplication of known devices, each
functioning independently of one another in a known way.
• Method of agriculture
• Mere scheme or rule or method of performing mental act or method of
playing game.

15
 Continued..
Patents for computer software:
• It is possible to patent programmes for computers which, when run on a
computer produce a “technical effect”. However, if a programme does not
produce such an effect, it is unlikely to be patentable.
• Foreg: an improved programme for translating between Japanese and
English is not patentable because linguistics is a mental process, not a
technical field.
• A programme which speeds up image enhancement may be patentable
because it produces a technical improvement in a technical area.
Patents for Business Models:
• Earlier in the US, patents were not given to ‘methods of doing business’ and
‘mathematical algorithms’ and these were exceptions developed by courts as
limitations on the grant of process patents.
• In the last few years, American courts have taken lead for the recognition of
patents for business models.
• ‘Mathematical algorithms’ and ‘methods of doing business’ were rejected
due to the concerns that what was the common knowledge of mankind
would be appropriated as the exclusive property of a private person.
• The Indian Patent Act considers business models as subject matter for not16
 Continued..
Patents for Incremental Innovation:
* Section 3(d) under chapter 2 of Indian Patent Act does not grant patent to incremental
innovation.
• For eg: for a new method employed in Pukapura – a smoke house used to dry rubber
sheets – would require 60.5% less fuel, a patent cannot be granted as it is
improvement over the old process.
• Similarly for modified drug formulation to be eligible for grant of patent, it should
exhibit enhanced efficacy over the older version, otherwise it is considered as
incremental innovation and hence it can be patented.
Patent Infringement:
• Patent holder has exclusive rights to use, sell or licence his patent rights. He can keep
away others from using/copying his patents. Patent holder can sue the infringer for
damage and compensation.
• Foreg: patent infringement is the bone of contention between two Indian motorbike
manufacturers – the Bajaj and TVS – for the technology used in 125cc motorbike.
Bajaj accused TVS of copying its dts-i (digital twin spark plug ignition) technology.
• However, TVS claimed that it had developed its own ccvti had contended that it
holds the patents for the twin spark technology for small engines while TVS had said
its motorbike model ‘Flame’ was fitted with a three-valve engine working on the
ccvti technology, which is different from Bajaj’s dts-i.
17
 Trademarks
• The protection of trademarks is law’s function of psychological symbols. If it is true
that we live by symbols, it is no less true that we purchase goods by them. A
trademark is merchandising short-cut, which induces a purchaser to select what he
wants.
Role of Trademarks:
• Trademarks have enormous value for an enterprise. These are the marks that are
external to the goods to make the public identify a certain quality and image
associated with that product or service.
• Trademark is a legally protected valuable marketing tool for product differentiation.
• It requires a dedicated team effort and preventive maintenance on the part of its
owner to protect its value, since there is no road back once a trademark is lost.
• Trademarks are being used for a long time. Some have been found onthe pottery
made around 5000B.C.
• In 1791, a group of Boston sailcloth makers petitioned US congress to be allowed to
register their marks.
• In 1870, congress enacted the first US Trademark law
• Once a trademark is registered, it can be renewed indefinitely provided it is still
being used in commerce.
• When the symbol is put near the mark on the product, it means that the trademark
or service mark is registered with the Patent and Trademark Office of the country.
18
 Trademark – A marketing tool
* A registered trademark gives the legal right to use, licence or sell it within the territory,
country or region for the goods and services for which it is registered.
• Over a period of time, a trademark usually becomes synonymous with the goods(i.e.
Godrej for store well and Xerox for photocopying). Trademark rights can also be sold
to other parties.
• Recently Jet Airways, India’s largest airlines, bought back its trademark from Jet
Enterprises, a company own by its promoter, for a one time fee of $ 7 million.
• A trademark can be a word, phrase, letter, number, sound, smell, shape, logo,
picture, aspect of packaging or a combination of these. It is used to distinguish the
goods and services of one trader or manufacturer from those of another.
• Difference between trademark, business, establishment and domain names
sometimes lead to confusion for both the traders and the consumers. The
registration of a business, company, or domain name does not in itself gives one any
proprietary rights, only trademark can give you that kind of protection.
• Trademark includes the use of the design, brand, heading, label, ticket, name,
signatures, word, letter or numeral separately or in any combination, which
performs the following functions:
Identifies the product and its origin
Guarantees product quality
Advertises the product.
19
 Trademark Rights
* Trademark rights arise automatically as a result of using a mark on the goods
or services.
• Registration is not mandatory. However, without obtaining registration of
the marks, the owner’s rights are limited to the geographic area in which the
mark has actually been used.
• The major benefits of registration are owner has nationwide priority rights
to use the trademark.
• Prevents anyone else in the region/country from using the mark for similar
goods or services.
• Owner is legally protected having a considerable advantage in any contest
over trademark rights.
• Term of a trademark registration in India is 10 years, with the renewal
thereafter.
• However between the fifth and sixth year of the initial term, the registrant
must file an affidavit with the Trademark office stating that the mark has
been in continuous use.
• The registration will be cancelled if no affidavit is filed.

20
 Types of Trademarks or Protectable marks
Trademark fall into four general categories: Arbitrary(or Fanciful), Suggestive,
Descriptive, and Generic.
Arbitrary or Fanciful Marks:
• These are considered the strongest because they typically have no meaning in the
English language, or in the context in which they are used, apart from the goods or
services they denote. Foreg: EXXON, XEROX, APPLE, LOTUS, Kodak and Gillete.
Suggestive Marks:
• These marks bring to mind attributes of a product or service without describing it.
Foreg: WORDPERFECT, OKIDATA, and VERBATIM suggest accuracy and reliability
without describing the products with which they are used. Foreg: Neem soap
Descriptive Marks:
• Descriptive marks are weaker and are generally poor choices for trademarks. Mark is
descriptive if it indicates what the product or service is, such as ELECTRONIC DATA
SYSTEMS, FAST DATA, or EASY SPREADSHEET.
Generic Mark:
* It is a term that has lost any trademark significance. It is no longer describes the
particular goods or services of a single source, but has come to be used by the public
as the term describing an entire class of items. Classic examples include kerosene,
elevator, aspirin, cellophane, and more recently, the term386 to describe a type of
microprocessor.
21
 Use of Trademarks
• By using trademarks for particular goods or services over a period of time
resulting into distinctiveness of its identity associated with that product or
service, user acquires property in it.
• Use it to earn profits and encash goodwill and reputation. Sell it or assign it
to earn a one-time profit.
• It symbolises the value or goodwill associated with the goods and which can
be assessed by the extent to its perception in the public mind with regards
to its quality and specific source.
• Goodwill associated with a trademark can be among a company’s greatest
intellectual property assets.

22
 Trademark Act, 1999
The Indian Trademark Act, 1999 provides for registration of trademark with the
Registrar of Trade Mark. For the purpose of registration of the trademark, India
has been divided into four zones. The trademarks offices are located in Mumbai,
Delhi, Kolkata, and Chennai.
The salient features of the Act are:
• Definition of trademark to include registration of shape of goods, packaging
and combination of colours. “Trade Mark” shall now include services as well.
• No provision for smell and sound marks
• Single application for same mark for multiple classes
• Use of foreign trademarks in India is permissible
• Use of hybrid trademarks is permitted in India. Such foreign trademarks
registered in the country of its origin are registered jointly with the Trade Mark
Registry in India along with the trademark of Indian party.
• “permitted use” to include use of a registered trademark by an unregistered
licensee is allowed.
• Comparative advertisement permitted.
• Making offences relating to falsification of trademarks and application of false
trade descriptions are cognizable. Police are empowered to search and seize
goods or other instruments involved in committing an offence.
23
 Trademark Registration in India
Trade and Merchandise Act, 1958 has been repealed and the Trade Marks Act,
1999 passed after taking into consideration developments in trading and
commercial practices in the country since liberalisation.
The new Act is meant to amend and consolidate the law relating to trademarks
to provide for registration and better protection of trademarks for goods and
services and for the prevention of the use of fraudulent trademark.
How to Register
Any person( individuals, corporate bodies, firms) claiming to be the proprietor
of a trademark, used or proposed to be used by him, desiring to register it
can file an application before the registrar for the registration of his
trademark.
Registration
The controller of Patents, Designs and Trademarks, known as the Registrar of
Trademarks appointed by the government is empowered to grant
registration for the trademark.
Trademark Registry
The trademark registry established under the old Act of 1958 will be the
trademark registry under this Act.
24
 Continued..
Electronic Records
The Registrar can keep the records wholly or partly on computer floppies,
diskettes and other electronic forms, with the required safeguards. Any
entry made in the registers in electronic form shall be deemed to be an
entry under the Act.
Location
The Register will be kept under the control and management of the Registrar. A
copy of the trademarks register will be kept in the branch offices, besides
the documents meant for public inspection notified by the government. The
register will also contain the existing trademark at the time of the
commencement of the Act.
Classification
The Registrar shall classify the goods and services in accordance with
international classification of goods and services for the purpose of
registration of trademark. Decision by the registrar making such
classification will be final.
Index
The goods and services after classification will be entered in the register in
alphabetical order. In the event of any omission, the registrar will determine
the error. 25
 Copyrights
• Copyright is usually defined as the legal rights granted to an author,
composer, playwright, publisher or distributor to exclusive publication,
production, distribution or of a literary, musical, dramatic or artistic or
original commercial design work.
Copyrights Protection in India:
• Copyright is a very old form of recognised intellectual property. The
copyright Act gives the exclusive right to the copyright owner to multiply
copies of his work for commercial use.
• Also prevents others from illegally multiplying the copies of the owner’s
work. It covers both published as well as unpublished works.
• It authorises the copyright owner for the reproduction or copying in respect
of a work or any substantial part like engineering drawings, sound
recording, musical work.
• In case of published work, copyright protection is for the life of the author
and continues for sixty years from the beginning of the calendar year
following the year in which the author dies.
• Registration of copyright is useful in safeguarding, protecting and enforcing
the legal rights of the owner. As per section 51 of the copyright Act 1957,
copyright in a work shall be deemed to be infringed. 26
 Enforcement Measures
Indian enforcement agencies are working effectively and there is a decline in the
levels of piracy in India. In addition to intensifying raids against copyright
infringers, the government has taken a number of measures to strengthen
the enforcement of copyright Law. Summary of these measures are given
below
• Government continued to stress the need for strict enforcement of the
copyright Act and Rules. State governments and other ministries were
regularly requested to lay special attention to ensuring copyright protection
in their functioning.
• Government also brought out ‘A Handbook of Copyright Law’ to create
awareness about copyright amongst the stakeholders, enforcement
agencies, professional users like the scientific and academic communities
and members of the public.
• National Police Academy, Hyderabad and National Academy of Customs,
Excise and Narcotics have conducted several training programmes on
copyright for the police and customs officers.
• Department of Education, Ministry of Human Resource Development,
Government of India has initiated several measures in the past for
strengthening the enforcement of copyrights that include constitution of a
27
copyright Enforcement Advisory Council(CEAC)
 Continued..
• CEAC is reconstituted from time to time to review periodically the progress
of enforcement of the copyright Act and to Advise the government on
measures for improving the enforcement.
• Special cells for copyright enforcement have so far been set up in 23 states
and Union Territories in India.
• For collective administration of copyright, copyright societies have been set
up for different classes of works. Like
• Society for copyright Regulations of Indian Producers of Films &
Television(SCRIPT) for cinematography films
• Indian Performing Rights Society Limited (IPRS) for musical works
• Phonographic Performance Limited (PPL) for sound recordings.
• Government also initiates a number of seminars/workshops on copyright
issues.

28
 Copyright Act, 1957 (Amendment 1999)
Copyright is the right of artist, author, producer of films etc., who have created a
work by use of their artistic skills. Copyright Act has provisions to protect
copyrights of foreign wok also.
Copyright protection is limited to an author’s particular expression of idea, process
and concept in a tangible medium.
Thus, copyright is negative in nature. It is not a right in novelty of ideas. Section 13(1)
of copyright Act provides that copyright subsists in:
Artistic work
• Artistic work means – 2(c) i) a painting, sculpture, a drawing (including a
diagram, map, chart or plan), an engraving or photograph.
• 2(c) ii) work of architecture. ‘work of architecture’ means any building or
structure having an artistic character or design, or any model for such building
or structure
Dramatic work
• It includes any piece for recitation, choreographic work or entertainment in a
dumb show, the scenic arrangement or acting form of which is fixed in writing
or otherwise; but does not include a cinematography film.
Literary work
* The term ‘literary work’ includes computer programs, tables and compilations
29
including computer databases [section 2(o)].
 Continued..
Computer programme
• It means a set of instructions expressed in words, codes, schemes or in any
other form including a machine readable medium capable of causing
computer to perform a particular task or achieve a particular result [section
2(ffc)].
• Computer includes any electronic or similar device having information
processing capabilities [section 2(ffb)]
Musical Work
• ‘Musical work’ means a work consisting of music and includes any graphical
notation of such work, but does not include any words or any action
intended to be sung, spoken or performed with the music [section 2(p)].
• Composer means a person who composes the work whether or not it is
recorded in the form of graphical notation [section 2(ffa)].

30