Types of Intellectual

Property
Dr Sanjay Bang
Introduction

► Intellectual property (IP) refers to any Intellectual creation of mind.

► Intellectual Property laws give people the right to own and profit from their
artistic, scientific and technological creations for a designated period of time.
► Inventors are granted to a variety of intangible assets, such as ideas,
business methods, inventions, musical piece, literary work, artistic works,
discoveries, words, phrases, symbols, and designs.
► The primary objective of an Intellectual Property Rights is to encourage
inventions by promoting their protection and utilization so as to contribute to
the development of Industries, which in turn contributes to the promotion of
technological innovation and to the transfer and dissemination of technology.
INTELLECTUAL PROPERTY RIGHTS (IPRs)

► The intellectual property rights were essentially

recognized and accepted all over the world due to some
very important reasons.
► To provide an incentive to individuals for new creations
► To accord due recognition to the creators and inventors
► To ensure material reward for intellectual property
► To make available genuine and original products.
VARIOUS KINDS OF IPRS

► Patents:
► Inventions (Products, Processes, Materials, Compositions)
► Technical Solution to a Technical problem
► Industrial Designs:
► External features appealing to the eye
► New Shape, Pattern or Configuration
Continued

► Trade Marks:
► A visual symbol such as a Word, Name, Logo, Label,
Monogram, Slogan etc.
► Applied on Article of Manufacture or Service .
► Indicates the origin of goods and services.
► Copyrights:
► Artistic, literary, musical and dramatic creations
► Proprietary right
► Comes into existence as soon as the work is created
Continued

► Geographical Indications (GIs):

► Identifiesagricultural, natural or manufactured goods
originating from a definite territory in India.
► Possessing special quality or reputation based upon unique
characteristics of the geographical location.
Trade Secrets:

► A trade secret consists of any valuable business

information.
► The business secrets are not to be known by the
competitor.
► There is no limit to the type of information
that can be protected as trade secret.
Continued

► Design:-
► In general, a design is the outer outlook of an article that a naked eye
can see.
► The definition of a Design as per the act provides that a design means
only the features of shape, configuration, pattern, ornament or
composition of lines or colours applied to any article whether in two
dimensional or three dimensional or both forms, by any industrial
process or means, whether manual, mechanical or chemical, separate
or combined, which in the finished article appeal to and are judged
solely by the eye, but does not include any mode or principle of
construction or anything which is in substance a mere mechanical
device, and does not include any trademark or property mark or
artistic work.
Continued

► Plant Varity Protection (PVP)

► Plant variety protection provides legal protection of a
plant variety to a breeder in the form of Plant Breeder's
Rights.
► Plant Breeder's Rights (PBRs) are intellectual property
rights that provide exclusive rights to a breeder of the
registered variety.
Patent

► The word patent has been coined from a Latin word patent-em
meaning open.
► A patent is a document issued by government to the inventor granting
permission to exclusively make, use and sell on disclosure of the
invention for a definite period of time.
► Unlike patents, monopoly existed where inventions were
not disclosed and exclusively sold.
► A patent is granted as an exclusive right by the Government for
an invention, for a limited period of time in consideration of
disclosure of the invention by an applicant.
Continued

► The first legislation in India relating to patents was the Act

VI of 1856.
► The objective of this legislation was to encourage inventions of
new and useful manufactures and to induce inventors to disclose
secret of their inventions.
► In 1911, the Indian Patents and Designs Act, 1911 was
brought in replacing all the previous Acts.
► This Act brought patent administration under the
management of Controller of Patents for the first time.
There are four major types of Patents

► In 1970, the new paten Act-1970 was passed considering after independence
the Act of 1911 was insufficient to meet the changing needs.
► 1) Standard Patent:-
► It is also termed as an ordinary patent in some countries.
► 2) A Patent of Addition :-
► A Patent of addition is for the improvement in or modification of an invention
for which a patent has already been applied for or granted.
► A patent of addition remains in force only as long as the patent for the
original invention remains in force (no renewal fees are payable in respect of
the patent for addition).
Continued

► In case the original patent is revoked, the patent of addition, may be made
an independent patent, by the authority ordering the revocation and it will
continue thereafter, subject to the payment of the prescribed renewal fees.
► 3) Utility Model Patents:-
► These are patents granted, in some countries such as Australia, China, Japan,
etc (unfortunately still not, in India) for simple devices such as a remote
light pointer used in power point presentations in conferences; a plastic
encased alarm clock invented by a NRI student in USA. that literally walks
away after the person who has been awakened shuts of the alarm, but starts
ringing again after a few minutes to ensure that the person has not again
gone to sleep; all kinds of toys, house hold goods, etc .
Continued

► New use Patents:-

► These are patents granted for new uses discovered or developed for an
existing patented product and are particularly important in pharmaceutical
products where a patented new medicine is found to be effective for
controlling or treating another disease, during the post clinical marketing
trials.
► For example the once a week, non hormonal, Centchroman contraceptive pill
for women, developed by the Central Drug Research Institute, Lukhnow was
also found to be effective in reducing breast cancer , and it was licensed to a
French Company for this new use.
Continued

► However, it may be noted that the grant of patent rights to the

inventor or his legal heirs, is on the condition, that the inventor shall
in exchange, fully disclose his invention in the patent application for
the benefit of other researchers who can develop or discover other
new products or applications based on the information contained in
the patent documents of the invention.
► It should not be for selfish purpose and society should be benefitted
out of that.
 BASIC ELEMENTS OF PATENT ABILITY IN
AN INVENTION
► It must be:
► 1) New ( Novelty)
► 2) Useful and ( Utility)
► 3) Non-obvious ( Natural)
► 1) Invention must be new: Novelty
► The invention must be the first of its kind in the world (not only in the
country where the patent has been filed).
► It must have an element of something different from what has been
done before.
 Inventions not patentable

► 1) Discoveries and scientific theories .

► 2) Aesthetic creations.
► 3) Schemes rules and method for performing
mental acts.
► Example: A method of playing chess or a
method of teaching.
► 4) Mere discoveries of substances as they
naturally occur in the world .
Difference between discovery and
Invention
► The fact that a known material or article is found to
have a hitherto unknown property is a discovery and not
an invention.
► But if the discovery leads to the conclusion that the
material can be used for making a particular article or in a
particular process, then the article or process could be
considered to be an invention.
► Also, finding of a new substance or micro-
organism occurring freely in nature is a discovery
and not a patentable invention.
Continued

► The mere discovery of a new form of a known

substance which does not result in the
enhancement of the known efficacy of that
substance or 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
is not an invention.
Continued

► 5) Inventions that may affect public order good morals or public healthy.
► Dolly Ship clone was rejected by Clinton Government.
► 6) Diagnostic, therapeutic and surgical methods of treatment for humans
or animals.
► Example: An operation on the body, which requires the skill and
knowledge of a surgeon like embryo transplants or any therapy or
diagnosis is not patentable.
► 7) Plants and animals other than micro organisms and essentially
biological processes for the production of plants or animals.
► 8) Computer programs.
Patent Infringement

► Patent infringement is a violation which involves the unauthorized use,

production, sale, or offer of sale of the subject matter or Invention of
another’s patent.
► There are many different types of patents, such as utility patents, design
patents, and plant patents.
► The basic idea behind patent infringement is that unauthorized parties
are not allowed to use patents without the owner’s permission.
► Thus, patent infringement is act of any unauthorised manufacture, use or sale
of patented.
► Patent infringement occurs directly or indirectly.
► Bajaj vs TVS (2007)
Continued

► 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.
Continued

► 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.
► Bayer Corporation v. Union of India, 162 (2009) DLT 371
► In 2008, Bayer Corporation (Plaintiff), was granted a patent by the Indian
Patent Office for its drug ‘Sorafenib Tosylate’ which is used to treat liver
and kidney cancer.
► Subsequently, in 2012, Natco Pharma was granted the first ever Compulsory
License by the Drug Controller of India (Defendants) to produce a generic
version of this drug.
Continued

► Plaintiff was selling the drug at Rs. 2,80,000 per month for a course and
Defendant promised to make this drug available for Rs. 8,800 only.
► Plaintiff aggrieved by the fact that a Compulsory License had been granted to
Natco and moved to the Intellectual Property Appellate Board (IPAB) for a
stay on the License stating that the License granted by the DGCI was invalid,
illegal and unsustainable.
► However, the IPAB rejected Plaintiff’s appeal holding that the License was
granted in public interest because of its lower prices allowing people to
access it.
► Plaintiff then challenged the order in Bombay High Court (HC).
Continued

► Issues:-
► The case involved many allied issues,
however, the main issue relating to patent
infringement was:
► Whether the License granted by the DGCI
was in accordance with the provisions of
the Patent Act?
Decision

► The HC again dismissed the petition upholding that public

interest shall always be prioritised. It held that the
objective behind the incorporation of the Patent Act is to
promote invention and safeguard the creator from
infringement.
► The HC held that interpreting Section 156 of the Patent
Act, which gives the Central Govt. the power to make
rules, to say that DCGI cannot allow the sale of a drug
patent by someone else would be incorrect.
Continued

► It held that DGCI could reasonably allow the

commercialisation of generic drugs even if they already
patented in public interest as per Section 90 of the
Patents Act.
► It clarified that by doing so, DGCI would not be supporting
or committing patent infringement but on the contrary is
responsible to avoid infringement since it has proper
licenses in place.
► It also held that the acceptance of the generic drugs
would not amount to patent infringement.
Rights and Obligations of patentee

► The rights conferred on a patentee are purely statutory rights conferred by

the Patents Act, 1970.
► There is no such thing as a common law right in inventions as in the case of
trade marks. A patent when granted confers on the patentee following
exclusive rights:
► 1) Where the subject matter of a patent is a product, to prevent third parties
not having the owner’s consent from the acts of: making using offering for
sale, selling, or importing for these purposes that product.
► 2) Where the subject matter of a patent is a process, to prevent third
parties not having the owner’s consent from the act of using the process, and
from the acts of: using, offering for sale, selling or importing for these
purposes at least the product obtained directly by that process.
Continued

► 3) Patent owners shall also have the right to assign, or transfer by succession,
or right to exploit the patent and to conclude licensing contracts.
► 4) A patentee has a right to surrender as well.
► Obligations of patentee
► 1) It is an obligation cast on the patentee to work the invention on a
commercial scale either by himself or through licensees. If the patentee does
not do this any interested person may obtain a compulsory licence to work
the patent.
► 2) In respect of patents relating to drug or medicine or substances used as
food, any person interested in working the patent may obtain a licence as a
matter of right after a period of three years from the date of grant of patent.
How does inventor get patent

► Getting a patent for an invention can take 5-7 years.

► As per the Patent (Amendment) Rules, 2016, only e-
filing of patents is allowed from 16.05.2016.
► Registering a patent requires the inventor to follow a series of
comprehensive steps listed on the official website.
► Once registered, a patent is valid for 15 years from the date of
filing the application for registration of the patent.
► Where a patent has ceased to have effect due to failure to pay
the renewal fee within the prescribed period, the patentee or
his legal representative can within 18 months from the date
on which the patent ceased to have effect make an
application in Form 15 for restoration of the patent.
Trademark

► The origin of trademarks can be traced back as far as the beginning of the
circulation of goods.
► The history of marks is nearly as old as the histories of mankind and religion.
Scientists have come across excavated artifacts from places such as ancient
Egypt with various symbols carved thereon for religious and superstitious
reasons.
► "Potters marks" appeared in relics left from the Greek and Roman periods and
were used to identify the maker (potter) of a particular vessel.
► Around the 10th century, a mark called a "merchants mark," appeared, and
symbols among traders and merchants increased significantly.
Continued

► These marks, which can be considered one kind of

"proprietary mark," essentially were used to prove
ownership rights of goods whose owners were missing due
to shipwrecks, pirates, and other disasters.
► Trademark is a unique sign or indicator used by an
individual, business organization or other legal entity to
identify that the products and /or services are offered to
the consumers with which the trademark appears.
► It would have originated from a unique source of
origin, in order to distinguish its products or valid for
services from those of other entities.
Definition of Trademark.

► A Trademark is defined in the Trademark Act as a mark that is

capable of distinguishing the goods and services of one person from
that of another.
► Simply put, any mark that tells the public that the goods or
services belong to a particular company, is a trademark.
► A trademark can be a device, heading, label, ticket, name, signature,
word, letter, numerical, shape of goods, packaging or combination of
colours or any such combination.
► This means that a trademark does not have to be a word, it can be a
logo, device mark or any of the things listed above.
What is the need for a Trademark?

► A trademark is needed to define ownership for products or services.

► People need to associate goods with a specific company.
► A trademark makes that possible. It is like an identity for a company
that bridges the gap between the public and the company.
► The importance of a trademark for business in the current economy cannot be
overemphasized.
► Cases of trademark infringement are relatively easy to prove. They also have
the added benefit of entitlement to damages.
► It is always better to protect a trademark by registering it, rather than take
the risk of exposing it to potential infringers.
Types of Trade Marks

► There are basically four types of trademarks they are

► 1) Service Mark.
► 2) Collective Mark.
► 3) Certification Mark.
► 4) Trade Dress .
► All these types of Trademarks are equally important and promote activity as
well as maintain the distinctiveness of the product.
► 1) Service Mark:-
► A service Mark is any word, name, symbol, device, or any combination used or
intended to be used in commerce to identify and distinguish the services of
one provider by others and to indicate the source of services.
Yahoo vs Akash Arora

► Defendant had adopted the name to his firm Yahoo India

► The plaintiff company brought the action.
► The Delhi High Court held that the internet user may get confused with the
same name.
► The Delhi High Court held that the dominion name serves as the same
function as Trade mark and entitled for equal protection.
► The defendant took a defence that it has put a disclaimer on the website,
but it was not accepted.
The Coco Cola vs Bisleri International

► Bisleri sold MAAZA trademark to Coco cola and used the same again in Turkey
in 2008
► The plaintiff filed the action for violation of trademark and passing off
► The interim injunction was granted.
► Thereafter the permanent injunction was also granted.
Continued

► It is basically useful in distinguishing one service provider from the other.

► Service Marks do not cover physical goods but only the provision of services.
Service marks are used to identify a service, as Trademarks are used for
protection of goods Service Marks are used in a number of day to day services
some examples of them are:-
► Management and investment services
► Housing development services
► Advertising Promotional services
► Hotel and motel services
► Entertainment services rendered by individual, group or theatre.
Continued

► A service mark is generally adopted so that it can play a crucial role in

marketing, promoting and sales of a product or service, it also plays the role
of referring to a particular quality or standard for which the service mark is
used.
► Service mark is denoted by the letters SM. Mark¨ may sometimes be used to
refer to both a trademark and a service mark, because the terms are
nearly but not completely interchangeable.
► Like trademark when choosing a name for a service mark a full research has
to be conducted to make sure no other firm is using the same name.
COLLECTIVE MARK

► A collective Mark is one used by members of a cooperative

association, union or other collective group or other
group or organization to identify source the of goods or
services.
► A collective mark means a mark which is utilized for goods
and services with same characteristics which are to be
traded by one or more person acting jointly or legal entity
for differentiation with other goods or services of same
kind.
CERTIFICATION MARK

► A certification Mark is a mark which indicates that certain qualities of goods

or services in connection with which the mark are used is certified.
► A certification mark is thus defined in the Trademarks Act 1994, Section 50 as
a mark indicating that the goods or services in connection with which it is
used are certified by the proprietor of the mark in respect of origin, material,
and mode of manufacture of goods or performance of services, quality,
accuracy, or other characteristics.
► An authorised certification Mark is expressly likened to a license of a
trademark in certain material, prohibition of importation of infringing goods
and order as to disposal of infringing goods.
► A registered mark maybe assigned according to registrar.
TRADE DRESS

► Trade dress refers to combination of elements that make up the look, feel, or
environment of a product or business.
► The term can refer to individual elements of a product or business
image as well as to the image the combination of those elements creates as
a whole.
► Trade Dress may include a few important features like: - Packaging Size Shape
Colour Combination Texture Graphics Design Placement of words and
decorations on a product Particular Sale Technique.
► Trade Dress can be mere coloring, surface ornamentation or a general
appearance, a design patentable invention has to be a shape or appearance of
a specific article which is more than a surface appearance.
 Why Protect Trade Marks?

► In the modern world there is a desire by most manufacturers to sell their

products and offer their services by means of a mark or a brand.
► Before the industrial revolution, traders displayed marks of various kinds to
distinguish their products.
► The hallmarks of Goldsmiths and the marks of Sheffield‘s Cutlers have their
own marks to distinguish their goods.
► Most legal systems therefore developed registration to protect the imitation
of marks and names.
► Trademarks have a variety of functions.
► Cornish summarize the functions into three broad categories: -
Trademark and consumerism

► Rights of Consumerism
► the right to safety, right to be informed, right to choose, the right
to be heard, right to seek redressel, right to education.
► 1) Adulteration
► 2) Misleading advertisement.
► 3) Higher price.
► 4) Sale of duplicate.
► 5) Sale of substandard goods
Assignment of Trademark

Under the Indian Trademarks Act, 1999, a trademark can be

assigned by its owner to another person or entity.
Assignment of a trademark means transferring the ownership
of the trademark from one person to another.
The assignment can be in full or in part, and can be for the
entire country or for a specific region or territory.
1) Draft an assignment deed: The owner of the trademark must
draft an assignment deed, which sets out the terms and
conditions of the assignment, including the rights and
obligations of both the assignor and the assignee.
Continued

2) Execute the assignment deed: Both the assignor and the assignee must sign the
assignment deed in the presence of at least two witnesses.
3) File the assignment deed: The assignment deed must be filed with the Trademark
Registrar within six months of execution, along with the prescribed fee. If the
assignment is not filed within six months, it can still be filed, but with an additional fee.
4)Publication in the trademark journal: Once the assignment deed is filed, it is
published in the trademark journal. Any person who has objections to the assignment
can file an opposition within three months of the publication.
5) Recordal of assignment: If there are no objections or if the objections are dismissed,
the Trademark Registrar records the assignment in the trademark register and issues a
certificate of assignment.
Copy Right

► The idea of Copyright protection only began to emerge with the invention of
printing, which made it for literary works to be duplicated by mechanical
processes instead of being copied by hand.
► This led to the grant of privileges, by authorities and kings, entitling
beneficiaries exclusive rights of reproduction and distribution, for limited
period, with remedies in the form of fines, seizure, confiscation of infringing
copies and possibly damages.
► Copyright is a well recognised form of property right which had its roots in the
common law system and subsequently came to be governed by the national
laws in each country.
Continued

► Copyright as the name suggests arose as an exclusive right of the

author to copy the literature produced by him and stop others from doing
so.
► The concept of idea was originally concerned with the field of literature and
arts.
► In view of technological advancements in recent times, copyright
protection has been expanded considerably.
► Today, copyright law has extended protection not only to literary,
dramatic, musical and artistic works but also sound recordings, films,
broadcasts, cable programmes and typographical arrangements of
publications.
► Computer programs have also been brought within the purview of
copyright law.
Continued

► Copyright ensures certain minimum safeguards of the rights of authors over

their creations, thereby protecting and rewarding creativity.
► Creativity being the keystone of progress, no civilized society can afford to
ignore the basic requirement of encouraging the same.
► Economic and social development of a society is dependent on creativity.
► The protection provided by copyright to the efforts of writers, artists,
designers, dramatists, musicians, architects and producers of sound
recordings, cinematograph films and computer software, creates an
atmosphere conducive to creativity, which induces them to create more and
motivates others to create.
Continued

► In India, the law relating to copyright is governed by the Copyright

Act, 1957 which has been amended in 1983, 1984, 1985, 1991, 1992,
1994, 1999 and 2012 to meet with the national and international
requirements.
► The amendment introduced in 1984 included computer
program within the definition of literary work and a new
definition of computer program was inserted by the 1994
amendment.
► The philosophical justification for including computer programs under
literary work has been that computer programs are also products of
intellectual skill like any other literary work.
Definition

► Section 14 of the Act defines the term Copyright as to mean the exclusive
right to do or authorise the doing of the following acts in respect of a work or
any substantial part thereof, namely
► In the case of literary, dramatic or musical work (except computer
programme):
► (i) reproducing the work in any material form which includes storing of it in
any medium by electronic means.
► (ii) issuing copies of the work to the public which are not already in
circulation;
► (iii) performing the work in public or communicating it to the
public;
► (iv) making any cinematograph film or sound recording in respect of
the work;
Examples of Indian Copyright
Infringement
► Chetan Bhagat filled the case for violation of his theme for Three Idiot movie.
► Najma Heptulla V. Orient Longman Ltd., Air 1989 Del 63,
► The petitioner was the legal heir of Maulana Abdul Kalam Azad, who has
provided this work to Prof. Humanyun Kabir for its translation and narration.
► The plaintiff had given the copyright to the publisher and had rejoiced 50% of
royalty for the next 30 years.
► Therefore, the court held that the plaintiff under no circumstance deters the
publisher from publishing the book after completing the said term.
Continued

► Super Cassettes Industries Limited V. Youtube & Google

► SCIL claimed that the YouTube business model reaps
substantial profit from the use of copyrighted work
uploaded without availing approval from the rightful
copyright owners and without paying any royalty for the
same. The High court opined that video streaming giant
and Google should stop reproducing, distributing,
transmitting, or displaying on their portal any audio-visual
works which are in the exclusive ownership of SCIL.
Continued

► The Chancellor, Master And Scholars Of The University

Of Oxford & Ors. V. Rameshwari Photocopying
Services And Anr., Cs (Os) 2439/2012
► The plaintiff sued the Rameshwari Photostat and the Delhi
University for the alleged infringement of copyrightable
work, i.e. course material. After examining the case, the
court issued temporary injunction to the defendant from
reproducing substantial parts of the works of original
publishers, i.e. Cambridge University Press, Taylor &
Francis, and Oxford University Press.
Continued

► The copyright judgement seems to defy the provision of

section 52 of the Indian Copyright Act, which states that
using/reproducing/distributing parts of a protected work
without offering any payment to the owner can be
permissible. In a legal purview, this is known as the
essence of ‘fair dealing’.
► However, the petitioners had a different thought on that
as they emphasized the fact that duplication of course
material via photocopying was not covered under the
concept of fair dealing for private use or research.
Rights of Copyright Holders

► In the Copyright Act, 1957, the owner possesses the negative rights
which are to prevent others from using his works in certain ways and
to claim compensation for the usurpation of that right.
► In this Act, there are two types of rights given to the owner:
► I) Economical rights II) Moral rights
► I) Economic Rights
► This right is also known as the Exclusive Rights of the copyright holder
provided under Section 14. In this Act different types of work come
with different types of rights. Such as:
In the case of original literary, musical, and
dramatic work:

► Right to reproduce;
► Right to issue copies;
► Right to perform at public;
► Right to make cinematography and sound recording;
► Right to make any translation;
► Right to adaptation; and
► Right to do any other activities related to the translation
or adaptation.
In the case of artistic work:

► Right to reproduce;
► Right to communicate;
► Right to issue copies;
► Right to make any cinematography and sound recording;
► Right to make an adaptation; and
► Right to do any other activities related to the translation
or adaptation.
In case of a cinematograph film work:

► Right to sell, rent, offer for sale of the copyrighted work;

and
► Right to communicate.
► In the case of a sound recording work:
► Right to communicate;
► Right to issue copies; and
► Right to sell, rent, offer for sale of the copyrighted work.
In the case, of computer program work:

► Right to do any act aforesaid mentioned; and

► Right to sell, rent, offer for sale of the copyrighted work
► Moral Right:-.
► In addition to the protection of economic rights, the Copyright Act,
1957 conjointly protects the ethical rights.
► These rights are supported by Article 6 of the Berne Convention
of 1886, formally referred to as a world convention for the
protection of literary and inventive works, whose core provision
relies on the principle of national treatment, i.e. treats the opposite
good as one’s own.
►Thank
You