Intellectual Property Rights, its Concerned Areas and Issues in Contemporary World

I. Introduction

Intellectual property is a category of property that includes intangible creation of the human intellect. IPR refers to the creation of Mind such as Inventions, literary and artistic work, designs and symbols, names and images in commerce.

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods & strike the right balance between the interests of innovators and wider Public Interest.

Intellectual Property Rights means providing property rights through patents copyrights and trademark. Holders of intellectual property rights have Monopoly on the usage of property and items for specific time period. The importance of IPR was first recognised in the Paris Convention for the protection of industrial property (1883) and Berne convention for the protection of literary and artistic work (1886).

Laws and rules that govern intellectual property rights (IPR)

• The importance of IPR was first recognised in the

1. Paris Convention for the protection of industrial property (1883).

2. Berne convention for the protection of literary and artistic works (1886).

• Both are administered by World Intellectual Property organisation (wipo).
• Intellectual Property Rights have been outlined in Article 27 of UDHR.
• WTO governs IPR through trade related aspects of intellectual property rights (TRIPS).

Trade related aspects of intellectual property rights (TRIPS)

- TRIPS is an international agreement on intellectual property rights.

- This agreement of IPR covers most forms including Patents, Copyright, Trademarks, Geographical Indications, Industrial designs, Trade secrets, & Exclusionary rights over new plant varieties.

It came into force in 1995 and is binding on all members of the World Trade Organisation (WTO).

II. Patent

A patent is granted for inventions which is a new product or process.

Law: patents Act, 1970, amended in 2006

Ministry: DPIIT, Ministry of Commerce and industry.

Period: 20 years.

Patent is an Official Document given to the holder of patents old right to make use or sell an invention and preventing others from imitating it. Patent a generally granted to inventions which include tangible products and processes.One cannot patent artistic creations, mathematic model plans, and scheme for other purely mental processes.

Classification: Based on duration

a) Full Term Patent: Maximum period for grant of patent is 20 years.

b) Short term patent: it is granted for less than 20 years and Maximum for 10 years.

History: the first patent was of enacted on 14th 74 by the Republic of reneice in India. First patent law was passed in 1856 than in 1959. In response to report submitted by Ayyagous committee. The Patent Act of 1970 came into existence which came into force on 20th April 1972.

Objective: to encourage and develop new technology and industry to encourage Research and invention. It induces an inventor to disclose his Discovery instead of keeping them as a trade secret. It grants exclusive privilege to own use & sale the patent. It stimulates fair trade practices by stopping others to use the patent illegally.

Right of Patent Holder. The owner of the patent has the right to regulate any person from damages from any person who perform any use exploitation without the owner's authorisation to claim compensation to grant permission to other for using his or her patented product.

Criteria for issuing patent in India

1. Novelty: it should be new & previously not known by others.

2. Non obviousness: It is demonstrated by showing that an invention would be made by merely applying knowledge clearly present in a prior art which includes patents, publications and general knowledge in a field of inventors.

• Patent in India is governed by The patent Act 1970, which was amended in 2005 to make it compliant

with Trade Related aspects of Intellectual Property rights.

General procedure for obtaining a patent.

1. Filing of patent application.

2. Publication after 18 months.

3. Pre grant opposition / representation by any person.

4. Request for examination.

5. Examination: Grand or refusal.

6. Publication of grant of patent.

7. Posts grant opposition to grant of patent.

8. Decision by controller.

Indian Patent Act, 1970

Patent Act provides guidelines for a successful granting of patent. Initially it was only for granting process patent. But it was amended three times in 1999, 2002, 2005.1999 amendment of the act granted exclusive marketing rights over drugs and the amendment in 2005 remove the discriminatory treatment by growing both product and process patent to drug coma Chemicals, food and vitamins and certain other inventions. The Patent Act describes the criteria, requirement post and all details of patentability. Section 3 of the Act contains of a lot of subjects that are non patentable.

What cannot be patented?

• Frivolous Invention: Invention that even harm the public order/ health/ Morality of plants, animals & humans.
• Methods of agriculture or horticulture
• Traditional Knowledge
• Computer Program
• Inventions related to Atomic Energy
• Plants & Animals
• Mere discovery of scientific principle

Patent (Amendment) Rules, 2020

The government of India has published amended Patent (Amendment) Rules, 2020. The latest norms have amended the format of a revelation statement that patent & license holders are usually required to submit annually to the Patent Office. Format also contains the disclosing the extent to which they have made to the patented inventions available to the public of the country. The disclosure which is to be made in the Form 27 format as prescribed/decided under the Patent Rules, 2003. The patentees & licensees as well as the Patent Office have flagrant disregarded this provisional requirement. There has been significant pressure from Multi National Corporations & the United States to do away with this requirement.

III. Copyright

Copyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic work and to the producers of cinematograph films and sound recording.

Law: Copyright Act, 1957, amended in 2012.

Ministry: Copyright office, MHRD

Period: 60 years.

Literary and scientific works: novels, poems, reference works, newspapers, plays, books, pamphlet, magazine, journals, etc.

Musical work: songs, instrument musical, choruses, solos, bands, orchestras, etc

Artistic works: such as painting, drawings, sculpture, architecture, advertisements, etc.

Photographic work: portraits, landscape, fashion or event photography, etc

Motion pictures: it includes the cinematography works such as film, drama, documentary, newsreels, theatrical exhibition, television broadcasting, cartoons, video tape, DVDs, etc

Computer programmes: computer programmes, softwares and their related databases,

Maps and technical drawings Copyrights in India are governed by “The Copyright Act, 1957”.

Copyright Duration

In India copyrights duration is for 60 years in the field of literacy, dramatics, music and remain after the death if inventor. Talking about the field of film, photograph, sound recording copyright term is 60 years from the starting of calendar year next following the year in which it gets published.

Copyright Infringement

Once the owner developed something, he ensures to get the copyright protection so he can get profit for his efforts. The Owner of the product carry full authority either to sell his work or give it to the third party to license it who can use his work on their behalf. If someone duplicates the work of copyright holder without the owner’s permission, then that can lead to copyright infringement. The owner can take a legal action against him.

Exception to Infringement under Sec.52 of the Copyright Act, 1957

• Private or personal use, including research
• whether of that work or any other work
• The reporting of current events and including the seminar reporting delivered in public.

Remedies for Infringement of Copyright

1. Civil remedy: According to Section 55 of The Copyright Act, 1957, where copyright in any work has been infringed upon, the owner of the copyright shall be entitled to all such remedies by way of injunction, damages, & accounts.

2. Criminal remedy: According to Section 63 of The Copyright Act, 1957, the copyright holder can take criminal suit against the infringer, in which there is a law provision of minimum 6 months of imprisonment and that can extend to 3 years and with a fine of Rs. 50,000, which may extend to 2 lakhs.

IV. Industrial designs

An industrial design having the aesthetic, ornamental or aspect of an art product. A design may consist of unique features, literally as the shape or surface of an object, or, such as orientations, lines or colours. Industrial Designs in our democratic state by “The Designs Act 2000”.The period of industrial design rights is different in different countries from 10 to 25 years. In India as per the Act, 2000 duration of prevention & safety of industrial design is for 10 years. This duration can be extended up to 5 years. An industrial design encourages creativity and skill development amongst the individual and manufacturing sector by promoting more aesthetically pleasing products for the society. The design and shape of the product not only create aesthetic appearance but in case of machine, furniture, automobile, etc design is also indirectly associated with ergonomics and plays a major role in customers’ comfort. The patent offices at Chennai, Mumbai, New Delhi and Kolkata also deal with industrial design. The Kolkata patent office as the duty maintain the register of design as provisional requirement of all concerned industrial design.

V. Trademark

A Trademark is recognisable sign, design or expressions which identify and unified a services and made it different from the other.

Law: Trademark Act, 1999

Ministry: DPIIT, Ministry of Commerce and Industry.

Period: 10 years

A Trademark identifies the brand owner of a particular product or services. Trademarks date back to ancient times when artisans used to put their signature or "mark" on their products. Trademarks in the country are governed under Trade Marks Act, 1999 which was amended in 2010.

Features of Trademark

Features are period, registration, validity, transfer, matter, control, enforcement, infringement.

Advantages of Trademark Registration.

1. Project your hard earned goodwill in the business.

2. Dispirit other from cashing on your anonymous built goodwill.

3. Give you a products status of branded goods.

4. Give an impression to your customer that the company is selling some standard products.

5. The exclusive right to use the trademark in relation to goods and services in respect of which the trademark is registered.

6. To obtain relief in respect of infringement.

7. Power to assign the trademark to others for consideration.

Procedure to apply for a trademark

1. Filing of an application for registration by a person claiming to be proprietor of Trademark in the office of Trademark registry within the territorial limits of place of business in India.

2. Examination of application by Registrar to assertion whether it is distinctive and does not conflict with existing registered or pending trade marks examination report in issued.

3. Publication of application after and before acceptance of application in Trademark journal.

4. After Publication if any person give notice of his opposition to registration within threeweeks which may be extended to maximum of one month.

5. If the opposition has been decided in favour of applicant of registration of Trademark Registrar shall register The trademark.

6. Today as per the Trademark rules 2002 the application fees are as 3500per trademark.

Duration: the term of registration of Trademark is 10 years. But may be renewed subject to the payment of the prescribed fee in accordance with the provisions of Trademark Act 1999. An application of renewal of The trademark can be filed within 6 months from date of expiry of the last registration of trademark.

VI. Geographical indications

A graphical indication (GI) of goods can be referred to a product of a state to or to a place possess qualities of that product.

Law: Geographical Indications of Goods (Registration and protection Act,) 1999.

Ministry: DPIIT, Ministry of Commerce and Industry

Period: 10 years

In order to function as a GI a sign must identify a product as originating in a given place.

The reputation and characteristics of the product is due to that origin. Product and the place shows a bonafide link with each other.

Geographical inductions are typically used the:

• Agriculture products
• Food stuffs
• Wine and spirit drinks
• Handicrafts
• Industrial products

Importance of GI: geographical indication and application of origin area is a common feature of everyday life. They not only provide of way for business to leverage the value of there Geographically unique products but also inform and attract customers.

Who may apply for GI?

Any community of people/organization/authority described in any law which concerned goods and producer includes trader, authorized user etc. Unwanted use can easily be prevented if the geographical indication is already reregistered. Helps in extending the business of Indians to the international level. It enhances economic growth for the country and seeking legal protection in other WTO member countries.

Duration of GI: The Term of Geographical indication protection is ten years.

VII. Trade secrets

Generally, an information that is not known to people, which uniformly gives business advantage and is helpful in commercial sector. Sometimes they are considered and referred to as confidential informations. It is generally known to be a formula, design etc. using or disclosing this essential secretive news and information is a violation of trade secret protection and will be considered as an unfair mean. Trade secrets considered to be the most confidential information which may either be sold or licensed. There is no specific law.

VIII. Intellectual property rights issues: major challenges faced

Having IP right in India is not an easy task. One has to face many issues to get the IP rights. The issues are as follows:

Patent evergreening prevention

In preventing the evergreening of the patients these MNC’s has to face this issue of intellectual rights. To restrain or retain there identity and to extend the patent right, Evergreening is considered to be one of the strategy. With the help of Evergreening strategy, the therapeutic efficacy can be stopped from increasing. We all know that with minor changes one company cannot evergreen their patents. Section 3(d) in the Indian Patent Act (IPA) act as an obstacle with regards to Intellectual Property Rights. This section basically bars the grant of patents to new forms of substances. This has basically down the moral value of western country investors.

Subsidies & IPR Issues

Subsidies having the major form which mostly includes food subsidy, education subsidy, etc. For making of a TRIPS agreement, these subsidies need to be either reduces or need to get eliminated. Thus, it is to maintain the balance between giving subsidies and giving IPR in India by the Government of India.

The Product Patents Process

A product patent protects a product. Its aim is to give protection to the one and original inventor and eliminate the competition for the similar product. Whereas the work of a process patent is to prevent the process through which one manufactures or invented the product. Deduct the chances and prohibit element of monopoly in and around the market. Being India to be a part of the TRIPS agreement, these agreements must requires all its team members to switch their patent regime from process to product patent. This thing always acts as a challenge for Indians, as this process patent would always be more helpful to a country like ours. This is since India is a developing country & ordinary people are struggling with basic necessities like food.

Protecting traditional knowledge

Traditional knowledge, especially in the field of medicine, is like a gold mine.GOI is bound to protect traditional knowledge by not allowing MNC’s to get patents on traditional culture. Traditional Knowledge Digital Library (TKDL) has been created by government of India to prevent the patenting of traditional knowledge and to make people aware.

Compulsory Licensing & Drug Price Control Order

Use of compulsory licensing is one of the most important issues which the Government of India must be concerned of. Government of India gives authorization to the party other than the inventor just to use or sell a registered patented product without even the permission of the actual owner. The statutes regarding mandatory licenses are provided under the Indian Patents Act, 1970 & in the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement. Developing countries around the world are provided this relaxation under the TRIPS agreement (sometimes misused by the organizations). With the Drug Price Control Order, the companies have to explain the amount of the drug with regards to investments. Governments have the full authority to intervene if one of a company plays foul. This provision is asked to repelled by many MNCs to the government. However, the government is not relinquishing these demands to protect the interest of the masses.

IX. Intellectual property rights in news

Why?

Government of India recently published the patent (Amendment) Rules, 2020

About Patent Amendment Rules 2020

Amendment provides new format for patentees and licensees to disclose the extent to which they have commercially worked or made the patented interventions available to the public in country.

By way of amended rules, certain amendments have been made to form 27 (“New Form 27”)

• Form 27 is the prescribed for patentees a licensees to furnish statements regarding working of their patent in India. It is mandatory under the (Indian) Patent Act,1970 for every patentee and licensees file a statement as to extent of commercial working of a granted patent in the Indian territory.
• Form 27 must now be furnished in respect of every financial year within 6 months from the expiry of every financial year. (Earlier it was within 3 months).
• There will be one form for multiple patents.

Patent Pools

Why?

International science collaborations on COVID-9 started a discussion on patent pooling.

News

• Recently, Costa Rica suggested pooling of rights to deal with the pandemic through lighter, inexpensive, and licensing to certify that the outcomes of struggle can be used by many countries with minimal economic resources to tackle the problem.

X. Patent pooling

According to world intellectual Property organizations (WIPO), patent pools are defined as agreement made between two or more patent holders for licensing their patents to one another or any other third party for the purpose of sharing their intellectual property rights. Generally patent pools are made for complex technologies which necessitate complementary patents for providing productive technical solutions such as vaccines in the present Covid 19 crisis. ‘Sewing machines Combinations’ of 1856 is considered as the first modern patent pool in the united states. In outbreak of 2002-03 there was a discussion in context of patent pooling in feedback of SARS, the H5N1 influenza outbreak of 2005, and the HN influenza pandemic of 2009.

International steps towards patent pooling:

• C-TAP: The COVID-19 technology access pool (C-TAP) (hosted by WHO) compiles pledge of commitment made under the solidarity Call to Action to voluntarily share COVID-19 health technology related knowledge intellectual property and data.
• Medicines Patent pool (MPP): invention of generic drugs for HIV, tuberculosis, and hepatitis C, has been facilitated, permitting them to sell at cheap and inexpensive amount..
• Trade Related Intellectual Property Regime (TRIPS): it allows countries to grant compulsory license to companies to produce a patented product at times of emergencies.
• Nagoya Protocol under Convention on Biodiversity(CBD): Article 2 (e) of the protocol can be interpreted as including the generic sequence information that forms the basis for all ongoing research and development on Covid treatment and prevention.

Protocol provides for access and benefit sharing when generic resources are used for commercial purposes, which indirectly provides a scope for patent pooling.

XI. Conclusion

As to concluding this we have seen the several kinds of benefits this IPR law provides to our society and for its development. One of the recent and most practical examples of it is Covid crisis, we have seen how India and South Africa came together in WTO for exempt member countries from forcing some patents trade secrets or pharmaceutical monopolies on the covid-19 vaccines, and indeed it got its way to some extent. Now in India we also have several laws and acts which regulate this IPR law in India such as IPR policy of 2016 and the nodal agency for this is DPIIT. IPR is indeed one of the intellectual creations for the betterment of the society as well as for the creator. When we talk about its relevancy we have seen how important it has become in current world it helps in improving the globalizing effect on the society as well as in fair trading business along with such rights and authority it gives to the holder of such property. We have already seen in above article several areas where IPR law proceeds and enforce. Everything has their positive and negative aspects so does this, it also has its difficulties for instance it would take so long period of time for filling a patient application which costs a lot of money which is not convenient for every patient holder. A patient holder has to spend ample amount of money again for maintaining his/her ownership for that it’s necessary to pay very expensive maintenance fees every fixed years. Despite all this we cannot neglect the amount of productivity and benefit it gives to the societal development as well as individual development.

XII. References

1. Nair M D, TRIPS, WTO and IPR – World Patents, Journal of Intellectual Property Rights, 15 (2010) 151-53.

2. www.wipo.int/ipstats/en/statistics/patents/wipo_pub_931.html (accessed on 10th August 2021)

3. United States Trade Secret Law (2009) website: http://www.mccormacklegal.com/pd f/US_TradeSecretLaw.pdf

4. https://www.wto.org/english/tratop_e/trips_e/gi_e.htm

5. https://www.mondaq.com/india/copyright/953334/copyright-infringement

6. Journal of Intellectual Property Rights Vol. 22, January 2017, pp 32-41

7. Lalit Jajpura, Bhupinder Sinha and Rajkishore Nayak

8. Venkataraman K & Latha SS, Intellectual property rights, traditional knowledge and biodiversity of India, Journal of Intellectual Property Rights, 13 (2008) 326-335.

9. www.ipo.gov.tt/home/faqs.html

10. www.copyright.gov.in/Documents/handbook.html

11. Virendra Kumar Ahuija, Law Relating to Intellectual Property Rights

12. Brad Sherman and Lionel Bently, Intellectual Property Law.

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