Intellectual Property Rights

March 21, 2019 | Author: Yashwant Yadav | Category: Patent Application, Patent, Glossary Of Patent Law Terms, Intellectual Property, Trips Agreement
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INTELLECTUAL PROPERTY Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. IP is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic ar tistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.


Property that derives from the work of an individual's mind or intellect.Towards intellect.Towards this, law creates rights in such intellectual pursuits, which are termed as INTELLECTUAL PROPERTY RIGHTS. There are two types of Intellectual property. 1. One kind of Intellectual pursuits leads to the creation of new substances, products, devices, technologies, methods or  processes, which are of value. These are protected under patents Act. 2.Human intellect can also be expressed through art, literature, music, films and brodcasts. These are protected under the copyrights Act.

Intellectual Property •

“Intellectual Property is the Property, Property, which has been created by exercise exercise of Intellectual Faculty” Faculty ”


Industrial Design



Geographical Indication

What is a patent? A patent is an exclusive right granted for an invention, invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. What does a patent do? A patent provides protection for the invention to the owner of the patent. The protection is granted granted for a limited period, generally 20 years

Patent v/s Copyright •

Copyright  –

Original works of authorship


Protects the form of expression, not the subject matter


Longer duration (life+70)


Automatically granted

Examples  –




Patent •

Set of exclusive rights  –  –  –

In exchange of Public disclosure of certain details of the invention that is  –  –  –

Novel Has an inventive step Capable of industrial application

Including the right  –

Given to the inventor By the state For a fixed period of time

To prevent others from making/using/selling the invention

But not necessarily the right  –

To make/use/sell the invention

Another way to protect your creation

And one more, if you are an emperor

The act stipulated the conditions under which a patent is to be granted. The application is refered by the controller to the examiner. The examiner checks whether the applications applications complies with the requirements requirements of the act. He also checks if the inventions inventions has been published or by claimed by some other person. The examiner searches among the existing list of patents holders, in a register maintained n the patent office’ to check whether the patent right is held by another person.

The patent officer, officer, after the examination of the application’ appl ication’ communicates its objections, if any, to the applicant. If the applicant is unable to remove remove the objections, the controller refuses to grant a patent to the application.

If the applicant applicant is successful successful in removing removing the objections, the controller advetises the application in the official gazette. This is towards giving an opportunity to the public to raise objections to the grant of patent. After a successful disposal of all objections, a patent is granted. The person in favour a patent is granted, is called a patentee. He can deal with his patent right like any other property. He can sell to other person. Any use without licence or other authorisation from the patent holder’ is an infringement. The patent holder can move the court to restrain restrain the violator and claims damages.

Indian Patent Office •

Administered by  –

 –  –  –


Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM) The Indian Patent Office has 75 Examiners, 70 Assistant Controllers, 7 Deputy Controller Co ntrollers, s, 1 Joint Controller, Controller, and 1 Senior Joint Controller, all of whom operate from four branches The patent office is headquartered at Kolkata Kolkata.. with branches in Chennai Chennai,, New Delhi and Mumbai Mumbai,, But the CGPDTM office is in Mumbai.


The office of the Patent Information System is at Nagpur


Patents now granted in 2-3 years

A patent is a monopoly right in the use of an inventions. Not all inventions can be patented. patented.

Patent duration •

Term of every patent in India is 20 years from the date of  filing of patent application, irrespective of whether it is filed with provisional or complete specification. However, in case of applications filed under PCT (Patent Cooperation Treaty) the term of 20 years begins from International filing date.

The Patent Cooperation Treaty (PCT) is an international

patent law treaty treaty,, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application.

Patent Validity •

A patent is valid if   –

satisfies common requirements


not proven invalid

Compulsory License •

After three years of patent, anyone can request a license from the govt. on these grounds  –



That the reasonable requirements of the public with respect to the patented invention have not been satisfied That the patented invention is not available to the public at reasonably affordable price Export of pharmaceuticals pharmaceuticals to poor countries

Not Patentable

• • • •

• • • •

Atomic energy Traditional knowledge Scientific principle Abstract theory Discovery of natural substances New form of a known substance Mixture of known compounds Methods of agriculture

History of Indian Patent System 1856

The Act of 1856 on protection of invention


Indian patents & designs act


Patents act (act 39 of 1970)  – only  – only process patents | 14 year, 7 year (food/drug)


India joins WIPO


India signs TRIPS (after joining WTO)  – 10  – 10 year “ultimatum” starting from 1995

1999, 2002, 2004, 2005

Amendments -Product patents | 20 years patent period | EMR | Burden of Proof 


Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)


Formulated Formulated 1986-1994

Uniform patent regime in 147 member countries

Indian Patent Act of 1970


Only process not product patents in food, medicines, chemicals

Process and product patents in almost all fields of technology

Term of patents 14 years; 5-7 in chemicals, drugs

Term of patents 20 years

Compulsory licensing and license of right

Limited compulsory licensing, no license of  right

Several areas excluded from patents (method of agriculture, any process for medicinal surgical or other treatment of  humans, or similar treatment of animals and plants to render them free of disease or increase economic value of products)

Almost all fields of technology patentable. Only area conclusively excluded from patentability is plant varieties; debate regarding some areas in agriculture and biotechnology

Government allowed to use invention to prevent scarcity

Very limited scope for governments to use patented inventions


How TRIPS came into being •

Until 1989, India opposed IPR policies in GATT GATT

US pressure – Restrictions on Indian food exports

Liberalization – early 1990s

Both Congress and BJP favoring favoring globalization in late 1990s

Need for FDI

Indian companies becoming stronger – demand patents

Industry bodies lobbying for patents

CSIR supporting patents

Effect on India Pharma Companies Force Indian companies to innovate

Indian companies don’t have enough funds for R&D

Increase competition

Not a level playing field

Western companies c ompanies may Indian companies already partner with Indian companies selling those, as generics  to sell their drugs Western companies c ompanies not interested in tropical diseases! -opportunity for Indian companies

Effect on Patients

Encouragement for development of new drugs

Expensive medicine

No Generics  availability affected affected

Effect ffect on Agriculture Agriculture

Protection to genetically Expensive seeds modified seeds Protection to plant varieties

They used to be protected by milder PVP laws


Good in long term, bad in short

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