TRIPS MANDATED CHANGES

TO INDIAN IP LAWS
KRISHNAPRIYA.B
LLM 2019-2020.
 TRIPS AGREEMENT
• The Agreement on Trade Related Aspects of Intellectual Property Rights, popularly
known as the TRIPS Agreement, is a multi-lateral agreement which provided a
framework for the protection of intellectual property and is regarded as a milestone in
the field of intellectual property development

• The TRIPS Agreement stipulates a set of minimum standards for the protection of
intellectual property rights with respect to WTO member nations and puts forward a
uniform global regime for the protection of intellectual property rights
 Evolution of TRIPS Regime
• The General Agreement on Tariff and Trade (GATT) played a major role in governing
international trade and provided a framework for the international trade in goods. A
significant drawback of GATT was that intellectual property protection was not given
adequate consideration.
• Later on, the need for adequate safeguards for the protection of intellectual property was
recognised in the Uruguay Round of multilateral trade negotiations in April 1994 held at
Marrakesh.

• This served as an impetus for the establishment of the World Trade Organisation (WTO)
- which replaced GATT. This also led to the adoption of WTO-TRIPS Agreement which
became operative on 1st January 2005 and India being a signatory to WTO was bound to
comply with the changes mandated by the TRIPS Agreement
Changes to Patent law

The historical evolution of India’s patent regime can be divided into 2 time
periods-
• PRE-TRIPS REGIME
• POST TRIPS REGIME
PRE-TRIPS REGIME- Colonial Period

• 1911-The Indian Patents and Designs Act was enacted.

• It created for the 1st time, a system of Patent Administration in India under the
direction of Controller of Patents.
• It provided for a 16 year Patent term, although extensions of up to 7 additional years
were available.
• Prior to World War II, there was virtually no basic drug manufacture in India.
• This Act was amended several times.

• Eg- In 1930, ‘Patents of Addition’ was incorporated –which is retained in the current
Act u/ss 54-56.
PRE-TRIPS REGIME-
Post Independence period
• After Independence, India was in abject poverty and misery due to the
aftermath of the war and the India – Pakistan partition.
• India was mainly an agrarian economy and MNCs controlled India’s drug
Industry.

• As a result, critical drugs such as penicillin and insulin were imported and
these drugs were highly priced.

• Immediately after Independence, a Committee was appointed by a

Resolution of the Indian Govt dated Jan 10, 1948 – to ‘Review the Patent
Laws in India with a view to ensure that the Patent system was more
conducive to National Interests’.
PRE TRIPS REGIME
Post Independence Period
• The Bombay High Court’s decision in the case Farbwerke Hoechst and
Bruning Corporation v. Unichem Laboratories 1969 is significant.

• The High Court awarded the West German Chemical Giant Hoescht, an
injunction against the Indian drug maker Unichem Laboratories . This
created a lot of controversy.

• India’s leaders demanded major changes to the Patent Law to start

indigenous manufacture of medicines at affordable prices.
PRE-TRIPS REGIME
Bakshi Chand Committee Report
• The Bakshi Chand Committee which was headed by former Supreme
Court Chief Justice Bakshi Tek Chand also called the ‘Patent Enquiry
Committee 1948-1950’ published its report in 1950.
Key Features of the Report-
• It explored the failure of India’s patent system to stimulate invention and
encourage exploitation of new inventions for industrial products.
• Recommended that compulsory licenses should be issued
• Recommended the need to introduce an efficient machinery to tackle the
abuse of patents.

• 1911 Act was amended in 1950 and 1952 in the wake of the Chand Report
with regard to compulsory licensing provisions .
PRE- TRIPS REGIME
Ayyangar Committee Report
• The Ayyangar Committee chaired by Justice N. Rajagopala Ayyangar was 2nd Govt-
Commissioned Committee was appointed in 1957.
• The Ayyangar Committee submitted its report in 1959 September- which examined the
Question of Revision of Patent Law and advised the govt accordingly.
• Backbone of Indian Patent System.
Key Recommendations of Ayyangar Committee Report-
• Changes to accommodate India’s technological advancement and industrialisation
• Need to encourage and reward inventors
• Increase the number of Indian research institutions and emphasis on technical
education
• Recommended the exclusion of product patents ie, prohibition of patents on
substances intended for use or capable of being used as food or medicine or drug.
 PRE-TRIPS REGIME
Ayyangar Committee Report
• Ayyangar Report’s 3 Pronged Strategy-
i. Identification of types of inventions for which patent protection should be available
ii. Determination, either to prohibit granting of Indian patents to foreign entities or to require the
working of such patents in India and
iii. Determination to withstand International pressures on India to join International IP Conventions
such as Paris Convention, which required National Treatment.

• Ayyangar Committee Report recommended major changes in law which formed the basis of the
introduction of Patent Bill, 1965 but the bill lapsed.

• In 1967, an amended Bill was introduced which was referred to a Joint Parliamentary Committee.
On the recommendation of this, the Patents Act was passed, repealing and replacing the 1911 Act
PRE-TRIPS REGIME-
Patents Act 1970
• The most notable feature of Patents Act 1970 was its repeal of patentability for
pharmaceutical products.
• The impugned Act prohibited patents on ‘substances intended for use’ or ‘capable
of being used’ as food or medicine or drug relating to substances prepared or
produced by chemical processes (including alloys, optical glass, semi-conductors
and inter- metallic compounds) (Section 5 of Patents Act 1970).
• The processes for making such substances remained patentable but with an
extremely short patent term.
• License of Rights were provided (Sec 86 of Patents Act 1970)
• The exclusion of product patents led to greater affordability and accessibility of
drugs as it promoted reverse engineering of foreign drugs.
 PRE-TRIPS REGIME-
Globalisation Era
• The Balance of Payment crisis that India faced led to the then Finance Minister
Manmohan Singh to establish License Raj. This was an impetus for the introduction of
LPG policy.
• When the GATT Uruguay Round trade negotiations were going on (1986-1994), India
opposed the inclusion of patents and intellectual property rights in the first 3 years.

Why did India later on accept WTO-TRIPS Agreement?

• Later, India was forced to accept the TRIPS Agreement for fear of restrictions on its
imports if it did not do so
• Also, because India could not afford to lose textile tariff concessions and
• Economic aid from foreign sources such as IMF and the US govt.
POST-TRIPS REGIME-
Amendments to Patents Act 1970

• The Amendments to the Patents Act 1970 happened in a phased manner

spanning over 3 amendments over the course of 10 years to make it TRIPS
compliant-
• 1st Patents (Amendment) Act 1999
• 2nd Patents (Amendment) Act 2002
• 3rd Patents (Amendment) Act 2005
 POST-TRIPS REGIME
Patents (Amendment) Act 1999
• Patent Mailbox Facility and EMRs
• India had to set up a Patent mailbox facility to accept pharma product patent applications
filed during the TRIPS transition period and to assign each application a filing date.(Art
70.8 of TRIPS Agreement)
This system is also called pipeline protection.
• TRIPS Agreement also required that EMRs(Art 70.9)- a short term quasi-patent rights to
be granted for certain mailbox applications that met additional specified criteria.
• Chapter IV-A (Section 24 A to 24 F) and Section 5(2)relating to EMRs was added to the
Patents Act , but is now repealed.
 POST-TRIPS REGIME
Patents (Amendment) Act 1999
• If granted, an EMR would grant the Exclusive right to sell or distribute the invention
in India for a period of 5 years from the grant of EMR until a patent was granted from
mailbox procedure or until mailbox procedure was finally rejected, whichever was
earlier.

• Grant of a patent on a mailbox application also extinguished any corresponding EMR.

• Framework for filing mailbox applications were only available during the transition
period that ended on 31st December 2004. It is now repealed.
• Article 65 of the TRIPS Agreement provided for transitional agreements.
POST-TRIPS REGIME
Patents (Amendment)Act 2002
Patents (2nd Amendment)Act 2002 made various changes such as-
• Section 2(1)(j) which defines ‘invention’ as a new product or process
involving an inventive step and capable of industrial application. The new
definition of an invention incorporates the ‘inventive step’ criteria of
patentability as provided in the TRIPS Agreement. It also simplifies the
definition of an ‘invention’ to fewer categories- products and processes in
accordance with TRIPS.
POST-TRIPS REGIME
Patents (Amendment)Act 2002
• Section 2(1)(ja) which defines ‘inventive step’ as a ‘ new product or
process involving an inventive step and capable of industrial applications.
Thus, India appears to have adopted a ‘non-obviousness-plus’ standard. In
order to be patentable, the invention must be
(1) Non obvious to a person skilled in the art
(2) Involve technical advance as compared to the existing knowledge or
have economic significance or both.
In the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal
Industries (1978), the Supreme Court of India equated ‘inventive step’ with
‘non-obviousness’.
 POST-TRIPS REGIME
Patents (Amendment)Act 2002
• Section 3(i)- Amended in compliance with Article 27.2 of TRIPS Agreement)
• Insertion of words ‘diagnostic and therapeutic treatment’ of human beings or any process for a
similar treatment of animals u/s 3(i) as non-patentable inventions.
• Section 3(i)- any process for the medicinal, surgical, curative, prophylactic, [diagnostic,
therapeutic] or other treatment of human beings or any process for a similar treatment of
animals,
[ the words “or plants” omitted] to render them free of disease or to increase their economic
value or that of their products.
• Section 3(j)- plants and animals and excluded whilst micro-organisms are patentable.
• It excludes from patentability ‘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’. This was done to make it in consonance
of Article 27.3 of TRIPS Agreement
 POST-TRIPS REGIME
Patents (Amendment)Act 2002
• India has chosen to exclude plants as well as varieties and species of plants and animals from
patentability, but provides sui generis protection for this subject matter under the Protection
of Plant Varieties and Farmer’s Rights Act 2001. (as per Article 27.3-TRIPS Agreement).

• The US Supreme Court case of Diamond v. Chakraborty (1980) recognised that micro-
organisms are patentable.
• The Calcutta High Court in the case Dimminaco A.G v. Controller of Patents, Designs and
Trademarks (2002) held that a process for the preparation of a vaccine, the end product of
which is a ‘live virus’ was an invention eligible for protection under the Patents Act.
• Thus, the court in the instant case overturned a long-standing policy of the Indian Patent
Office to refuse such process claims( 1991 circular by IPO). Thus, it opened the doors to
biotechnology patents in India.
POST-TRIPS REGIME
Patents (Amendment)Act 2002
• Patent term for all inventions of all fields has been extended to a period of 20
years from the date of filing of application under Section 53. (Art 33 TRIPS)
• Deleted the provision for ‘License of right’ from the compulsory license option
for TRIPS compliance.
• Reversal of burden of proof u/s 104 A in case of alleged infringement of a
process patent has been inserted. (Art 34 TRIPS)
When the owner of a process patent in suit establishes that the product of the
accused infringer is identical to that obtained by the patented process, the court
under either of the 2 conditions may order the burden of proof shifted to the
accused infringer to disprove that its process is different from the patented
process
POST-TRIPS REGIME
Patents (Amendment)Act 2002
Those conditions are that -
(a)the patented process is one of that obtains a new product, or more typically, that
(b) there is a substantial likehood that the accused infringer is using the patented
process and the patent owner has been unable through reasonable efforts to determine
the process actually used by the accused infringer.

• Deletion of Section 3(g) from the list of non –patentable inventions.

Section 3(g) provided for-
‘a method or process of testing applicable during the process of manufacture for
rendering the machine, apparatus or other equipment more efficient for the
improvement or restoration of the existing machine, apparatus or other equipment or
for the improvement or control of manufacture.’
 POST-TRIPS REGIME
Patents (Amendment)Act 2002
The deletion of Section 3(g) widened the scope of patentability of testing methods or
processes which are being developed in support of manufacture in pharmaceutical industry.

• Inclusion of Experimental/Research Exemptions u/ss 47(3) and 107 A (a) of the Patents Act
(in accordance with Article 30 of TRIPS Agreement).
According to Article 47(3), any person can use patented product or process for the purpose of
experiment or research including imparting of instructions to pupils.
This provision is merely for academic purpose and further research or experiment.
This exemption can be used as a statutory defence against infringement where the patented
invention has been used for research or experimental purpose
POST-TRIPS REGIME
Patents (Amendment)Act 2002
• The amended Section 107 A(a) states that –any act of making, selling or
importing a patented invention solely for uses related to the development
and submission of information does not amount to infringement of patent.

It enables the pharma companies to perform further research and

developmental activities over the patented product for preparing regulatory
approval. This exemption is specifically useful for generic version in
advance of the patent expiry.
• When these 2 exemptions u/ss. 47(3) and 107A(a) are taken together, it
appears to be extremely useful for experimental and research purposes for
pharma sector.
 POST-TRIPS REGIME
Patents (Amendment)Act 2002
• Research exemption is known as the Bolar Provision in Canada which originated from Roche
Products v. Bolar Pharmaceutical. In US, this exemption is known as Hatch-Waxman
Exemption or Section 271(e)(1) exemption.

• Insertion of Section 3(p)- Traditional knowledge in the list of non patentable inventions.
The Patents Act excludes from patentability ‘an invention which in effect is traditional
knowledge or which is an aggregation or duplication of known properties of traditionally
known component or components.
This helps to prevent the exercise of proprietary rights in India's genetic resources and
indigenous knowledge.
POST-TRIPS REGIME
Patents (Amendment)Act 2002
• Revised Compulsory License provisions were inserted.

• Certain provisions were repealed from the Patent Act which include-
Section 95 ( Terms and conditions of compulsory licenses),
Section 96 (Licensing of related parts),
Section 97 (Special provision for compulsory licences on notification by Central Govt),
Section 98 (Order for license to operate as a deed between parties concerned)

• Incorporation of the rights conferred on the patent owner as per Art 28 of

TRIPS Agreement u/s 48 of Patents Act 1970.
POST-TRIPS REGIME
Patents (Amendment)Act 2002
• India’s formal recognition in India’s Patents Act of the Nation’s Accession
to 2 leading International Property Treaties, both administered by UN
affiliated WIPO (Article 2.1 of TRIPS Agreement) which entered into
force in India on 7 Dec, 1998:

1) Paris Convention for the Protection of Industrial Property and

2) Patent Cooperation Treaty
 POST-TRIPS REGIME
Patents (Amendment)Act 2002
• India being a party to the Paris Convention, had to abide by:
1. National Treatment Principle- which forbids discrimination of foreign applicants

2. Right of Priority- which allows foreigners who have previously filed an application for
patent in their home countries-, a 12 month Priority period in which to file application
directed to same invention in India. While retaining the benefit of their home country filing
date.

• As a PCT signatory, India had to begin accepting national phase filings of International
applications originally filed abroad under the PCT and designating India.
• Prior to 2002, Patent applications could only be filed directly with the Indian Patent Office.
POST-TRIPS REGIME
Patents (Amendment)Act 2005

• The 3rd and Final Amendment to the Indian Patents Act 1970 came into
effect on 1st January 2005.

Major changes include-

• The Omission of Section 5 from the Patents Act 1970 which dealt with
only process patents for food, drug or medicine. With this omission, now
both product and process patents are allowed in the case of food or drug or
medicine.
POST-TRIPS REGIME
Patents (Amendment)Act 2005
• Introduced Section 92 A which deals with compulsory licensing of
pharmaceuticals for export purposes.
• This is meant to facilitate the Indian industry to continue supplying cheaper
generic versions of patented drugs to those least developed countries that do not
have adequate domestic manufacturing capabilities.

• Omitted Chapter IV A and Sections 24A to 24F, thereby discontinuing EMR

provisions.
• Led to the Insertion of additional provisions for pre-grant opposition [u/s 25(1)]
along with provisions for filing post-grant oppositions [u/s 25(2)] in the finally
amended Act.
POST-TRIPS REGIME
Patents (Amendment)Act 2005
• Section 3(d) was inserted in the purview of exclusions from patentability.
• Section 3(d) prevents ever-greening of patents.
• It prevents patenting of derivates of known substances
• Hence, more than one patent cannot be given on a single invention unless it
is proven there is enhancement of efficacy of the known substance.
• In Novartis A.G v. Union of India, the Chennai High Court upheld the
constitutional validity of Section 3(d) and observed that this provision is
TRIPS compliant, by referring to the TRIPS- flexibilities given to member
states in the national public interest and public health and welfare
CHANGES IN THE COPYRIGHT ACT 1957

• The Copyright law enacted in conformity with the Berne Convention had to
incorporate changes laid down by the TRIPS Agreement. While the Berne
Convention had allowed flexibility to developing countries to give protection
lesser than that provided in TRIPS Agreement in respect of right of
translation and right of adaptation, with the adoption of TRIPS Agreement,
the Copyright law had to be changed accordingly.
• The 1994 and 1999 Amendments to the Copyright Act 1957 came as a
reaction to the TRIPS Agreement, so as to make the Copyright Act in
conformity with the TRIPS Agreement.
CHANGES IN THE COPYRIGHT ACT 1957
• Protection of performers, producers of phonograms (sound recordings)
• As provided in Article 14 of the TRIPS Agreement as reflected in the 1994
amendment in the Copyright Act provides for a separate right for performers(u/s
38 ) and broadcasting organisations(u/s 37). The term of protection is also
provided which is similar to the term afforded to other copyright owners.

• The broadcast reproduction right subsists for a period of 25 years from the
beginning of the calendar of the following year in which the broadcast is made.
[Section 37(2) of Copyright Act]
• The performer’s right subsists for a period of 50 years from the beginning of the
calendar year following the year in which the performance is made.[Section
38(2)]
CHANGES IN THE COPYRIGHT ACT 1957
• Article 10 of the TRIPS Agreement has given protection to computer
programs whether in source or in object code to be protected as literary
works. Article 10.2 specifies that compilation of data or other material
whether in machine readable or other form, constitute intellectual creations
and shall be afforded protection. These provisions are reflected in the1994
Amendment incorporated under the Copyright Act in the definition of
literary work u/s 2(o).
• Section 2 (o) - “literary work” includes computer programmes, tables and
compilations including computer databases.
CHANGES IN THE COPYRIGHT ACT 1957

• Insertion of Section 53 A which deals with Resale share right in original

copies -1994 Amendment
• The resale share right is available to an author who is the first owner of
copyright in such work in case of resale of a copyrighted work for a price
exceeding 10,000 rupees from the original copy.
• Amendment of author’s special rights u/s 57(1) - 1994 Amendment
CHANGES IN THE COPYRIGHT ACT 1957
• Sec 40 A- Power of Central Govt to apply Chapter VIII( RIGHTS OF BROADCASTING
ORGANISATION AND OF PERFORMERS-inserted vide 1999 Amendment) to broadcasting
organisations and performers in certain other countries- Inserted by 1999 Amendment.
• Sec 42A- Power of Central Govt to restrict rights of foreign broadcasting organisations and
performers under the Copyright Act when such foreign country does not give adequate
protection to the rights of broadcasting organisations and performers- 1999 Amendment
• The provisions of Copyright Act 1957 will not apply to foreign broadcasting organisations
and performers based in a foreign country which does not give adequate protection for the
same. Hence, these provisions would not apply to–
The broadcasting organisations or performers are based or incorporated in such foreign
country or
Broadcasting organisations or performers are subjects or citizens of such foreign country and
are not incorporated or domiciled in India.
CHANGES IN THE COPYRIGHT ACT 1957

• Insertion of Section 52 (ab), (ac) and (ad)-1999 Amendment

This has broadened the sphere of acts which do not constitute infringement
of copyright in respect of computer programme.
CHANGES IN THE COPYRIGHT ACT 1957
• Article 12 provides for a term of protection of work, other than a
photographic work or a work of applied work to be either-
50 years from the end of the calendar year of authorised application or
50 years from the making of the work (when authorised publication fails)
calculated form the end of the calendar year.
Section 22 of the Copyright Act was amended in the year 1992 extending
the term of copyright in published literary, dramatic, musical and artistic
works to a period of 60 years from the earlier period of 50 years.
CHANGES IN THE TRADEMARKS LAW
• Trade and Merchandise marks Act 1958 which was the prevailing
legislation in India prior to the TRIPS Agreement had to be repealed and
replaced by the Trademarks Act 1999 in view of the globalisation of trade
and the need to simplify and harmonize the trademark system in
compliance of the TRIPS Agreement.

• The scope of Trademark protection was widened by introducing

trademarks for ‘services’ in addition to goods within the definition of
trademark u/s 2(za) of the Trademarks Act 1999 (Article 15 of TRIPS)
CHANGES IN THE TRADEMARKS LAW

• The categorisation of trademarks into Part A (common law trademarks)

and Part B(registered statutory trademarks) in relation to its registration
was repealed .This in turn simplified the registration of trademarks in
India. The international system of classification of trademarks has been
incorporated to afford uniform protection.
• Enlarge the aspects to be taken into account for determining a ‘well-known
trademark’ u/s 11(9) of Trademarks Act. (Article 16.2 of TRIPS)
• The definition of ‘trademark’ was amended and widened in conformity
with the TRIPS mandate u/A 15.1 (incorporated u/s 2(za) of Trademarks
Act.
CHANGES IN THE TRADEMARKS LAW

• The period of protection of trademark has been provided as 10 years which

is renewable by application u/s 25(1). However, the TRIPS Agreement
requires trademark protection for a term not less than 7 years and the
registration of a trademark can be renewed indefinitely (Article 18 of
TRIPS).

• Trademark offences were made cognisable in consonance with Article 61

of TRIPS which provides for Criminal Procedures and penalties at least in
case of wilful trade mark counterfeiting or copyright piracy on a
commercial scale.
CHANGES IN DESIGNS LAW

• The Designs Act 2000 was passed in a bid to make the Indian regime on
designs at par with the International standard laid down by the TRIPS
Agreement and promote design activity thereby leading to the promotion
of design element in a given article of production.

• The Designs Act made considerable change to bring uniformity to the

Indian law by the passing of the Designs Act 2000 which repealed and
replaced the erstwhile Designs Act 1911 by virtue of Section 48 of Designs
Act.
CHANGES IN DESIGNS LAW

• It increased the term of protection of registration to 10 years instead of 5

years, which can also be extended to a further duration of 5 years u/s 11 of
the Designs Act 2000 (Art 26.3 TRIPS Agreement).

• A design in order to be registered must be new or original provided u/s 4 –

dealing with Prohibition of registration of certain designs (Art. 25 TRIPS)

• Section 42 of the Designs Act provides for the avoidance of certain restrive
conditions in contracts, leases and certain licenses in a bid to control anti-
competitive practices in Contractual licenses (u/A 40 of TRIPS
Agreement).
LAW REGARDING GEOGRAPHICAL INDICATIONS
• Prior to 1999, India did not have any legislation governing geographical indications. In
order to meet the challenges posed by the lack of proper legislative framework in
accordance with international standards of protection, the Indian parliament was forced
to enact the Geographical Indications of Goods (Registration and Protection) Act 1999.

• Geographical Indications are indications which identify a good as originating in the

territory of a Member, or a region or a locality in that territory, where a given quality,
reputation or other characteristic of the good is essentially attributable to its
geographical origin (Article 22 of TRIPS- incorporated u/s 2(1)(e) of the GI Act.

• The establishment of a Geographical Indications Registry u/s 5.

• It disallowed the registration of a geographical indication as trademark u/s 25(Art 22.3
of TRIPS).
LAW REGARDING GEOGRAPHICAL INDICATIONS
• Provisions for the compulsory advertisement of all recognized geographical
indication applications and invites objection.

• Prohibits the registration of certain geographical indications under Section 9 of

the Geographical Indication of Goods (Registration and Protection) Act 1999.

• It contains provisions for the renewal of geographical indications and its

rectification and restoration u/s 18.

• Section 84 dealing with Special provisions relating to application from citizens

of convention countries –recognises the Additional protection for geographical
indications for wines and spirits(Art 23 TRIPS)
LAW REGARDING SEMICONDUCTOR AND
INTEGRATED CIRCUITS LAYOUT DESIGN
• Prior to 2000, India did not have any legislative framework to deal with semiconductor
and layout design of integrated circuits. In order to fill this gap and to make it at par
with standards issued by the TRIPS Agreement, the Indian parliament introduced the
Semiconductor and Integrated Circuits Layout Design Act 2000.

• The impugned Act defines the concept of ‘layout design’ as a layout of transistors and
other circuitry elements and it includes lead wires connecting these elements and
expressed in a semi-conductor integrated circuit u/s 2(h).
LAW REGARDING SEMICONDUCTOR AND
INTEGRATED CIRCUITS LAYOUT DESIGN
• The impugned legislation also defines a ‘Semiconductor Integrated Circuit’
as a product having transistors and other circuitry elements that are
inherently inseparable and formed on a semiconductor material or an
insulating material or inside the semiconductor material and designed to
perform an electronic circuitry function u/ s 2(r).

• The Act was enacted to give effect to Article 35 of TRIPS Agreement

which states that members agree to provide protection to the layout-
designs( topographies of integrated circuits) in accordance with Art 2-7,
Art 12 and Art 16.3, para 3 of the Treaty on Intellectual Property in
Respect of Integrated Circuits .
LAW REGARDING SEMICONDUCTOR AND
INTEGRATED CIRCUITS LAYOUT DESIGN

• The impugned legislation provides for the registrability of layout design. It

states that in order for a layout design to meet the criteria of registrability,
it should be- original, not commercially exploited in India or any other
convention country or must be distinctive or distinguishable from any
other registered layout-design u/s 7 ( Prohibition of registration of certain
layout designs).
• A layout design cannot get protection unless it is registered.
LAW REGARDING SEMICONDUCTOR AND
INTEGRATED CIRCUITS LAYOUT DESIGN

• The layout design registration remains valid in force for a term of 10 years
from the date of application or commercial exploitation in any nation,
whichever is prior in date u/s 15 of the Act.
• An infringement of a layout design is regarded as a criminal offence in
India apart from the civil remedies it provides. Infringement of the same is
punishable for a term extending to 3 years or fine of Rs 50,000 extending
up to Rs 10,00,000 or both. (Thereby recognising Art 61 of TRIPS which
provides for Criminal Procedures for enforcement.)
LAW REGARDING PLANT VARIETIES AND
FARMERS’ RIGHTS
• The Protection of Plant Varieties and Farmers’ Rights Act 2001, was a
remarkable development which resulted in a bid to conform with
internationally accepted standards laid down by the TRIPS Agreement. It is
indeed a milestone development because prior to this legislation, there was
no scope for the protection of plant varieties and farmers’ rights in India as
intellectual property.
• This legislation recognises and protects the rights of farmers with regard to
their role in the conservation, improvement and availability of plant genetic
resources for development of the new varieties. It recognises and protects
the rights of plant breeder and encourage investment for research and
development of new plant varieties.
LAW REGARDING PLANT VARIETIES AND
FARMERS’ RIGHTS
• The concept of benefit sharing was introduced and the procedure for
determining benefit sharing which is dealt under Section 26 of the impugned
Act.
• The establishment of a National Register for Plant Varieties maintained at the
head of the Registry.
• The period of protection of registration , ie, the certificate of registration shall
be valid for a period of nine years in case of trees and vines, and six years in
case of other crops which is subject to review.
• Section 24(6) of the Protection of Plant Varieties and Farmers’ Rights Act,
2001.
CONCLUSION

• The WTO- TRIPS Agreement has brought a paradigm shift in the

intellectual property regime in India. It has resulted in the amendment of
various legislations such as the Patent Act 1970, the Copyright Act 1957,
the replacement of the Designs Act 1911 with the Designs Act 2000, and
the substitution of the Trade and Merchandise Marks Act 1958 with the
Trademarks Act 1999.
CONCLUSION

• This has led to the evolution in the field of intellectual property regime in
India in conformity with the international guidelines laid down by the
TRIPS Agreement. The result is that now India has a strong intellectual
property framework to protect and regulate the various forms of
intellectual property, thereby inducing creative activity and providing
incentives and reward for the creators of such intellectual property so that
they can bear the fruits of their intellectual labour.