overview of intellectual property rights and their role in technology transfer t.c. james director...
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Overview of Intellectual Property Rights and Their Role
in Technology TransferT.C. James
DirectorNational Intellectual Property
Organisation
Objective
To present
• General introduction to the concept of IPRs
• Different Kinds of IPRs• Role of IPRs in Technology Transfer
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Intellectual Property Right
• Right• A thing one may legally or morally claim• The state of being entitled to a privilege,
immunity or authority to act.E.g. Fundamental Rights; Right to Natural Justice
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Intellectual Property Right
• Property• Something owned• Right to Possession, Use, etc.• Two Important Features
Owner of the Property May Use it as He wishesNobody else can lawfully use his Property without
his authorization
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Kinds of Property
• Movable PropertyE.g. Car, Pen, Furniture, Dress
• Immovable PropertyE.G. Land, Building
• Intellectual PropertyCreations of the Human Mind/Intellect
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Scope of IPRs - 1
• Rights relating toLiterary, Artistic and Scientific WorksPerformances of performing artists, phonograms,
and BroadcastsInventions in all fields of human endeavourScientific DiscoveriesIndustrial Designs
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Scope of IPRs - 2
Trademarks, Service marks and Commercial Names and Designations
Protection Against Unfair CompetitionAnd all Other Rights resulting from Intellectual
Activity in the Industrial, Scientific, Literary or Artistic Fields.
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Some Mythology, Some History 1
• Eklavya Story from the Mahabharat• 1407: Venice Patent Law• Saint Columba, Abbot Finnian and King
Dermont• “To every cow her calf and consequently to
every book its copy.”• 1529 Act of Henry VIII: System of Privileges fro
printing books
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Some Mythology, Some History 2
• 1709: Statute of Anne “Mother of all copyright Laws”
• Potters’ Marks used to identify the source of fired clay pots 3500 years ago
• Trademark Law in early 17th century in England
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International Protection
• Paris Convention for the Protection of Industrial Property 1883
• Berne Convention for the Protection of Literary and Artistic Works 1886
• TRIPS: Agreement on Trade Related Aspects of Intellectual Property Rights 1994
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IPRs in TRIPS
• Copyrights and Related Rights• Trademarks• Geographical Indications• Industrial Designs• Patents• Lay-out Designs (Topographies) of Integrated Circuits• Trade Secrets• Fair Competition
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Rationale
• Principle of Natural JusticeCreator has a right to economic rewardCreator has a right to control the use of his
creation
• Evolution of Society, economy and technology necessitated a transparent system
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Basic Principle
• Contract between creator and sovereign state• Balance between rights of creator and public
interest
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Art. 27 of Declaration of Human Rights
• 1. Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits
• 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
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Copyright?
• Copyright is a legal term describing rights given to creators of original literary and artistic works
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Works Protected• Literary works
Novels, poems, plays, reference works, newspapers, computer programmes
DatabasesAdvertisements, maps and technical drawings
• Artistic works Paintings, drawings, photographs, sculptureArchitectural works
• Films• Musical compositions, choreographic works
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Rights• Economic Rights: Exclusive right to authorise or
prohibit in respect of a workReproduction in various forms, such as printed publication
or sound recordingPublic performance as in a play or musical workRecordings such as in a CD or VCD or DVDBroadcasting by radio or television or satellite or cable or
InternetTranslationAdaptation e.g. a novel into a screenplay
• Moral Rights: Right of authorship and integrity
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Related Rights
• Rights of performing artists in their performances
• Producers of sound recordings in their recordings
• Broadcasting organisations in their broadcasts
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Law
• The Copyright Act, 1957 as last amended in 1999
• Term of Protection: life of the author plus 60 years
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Patents
• A patent is an exclusive right granted for new (novelty) invention (inventiveness), which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem which has an industrial application (utility)
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Patent Protection
• The invention cannot be commercially made, used, distributed or sold without the patent owner’s consent.
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Industrial Designs
• An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features such as the shape or surface of an article, or of two-dimensional features such as patterns, lines or colour.
• It must appeal to the eye.
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Industrial Design Protection
• Design must be new or original• Right to prohibit others from copying or
applying the design without owner’s permission
• Known variously as Design right, copyright or patent
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Design Law
• The Designs Act, 2000• Period of protection 10 years extendable by
another 5 years
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Trademark
• A trademark is distinctive sign which identifies certain goods or services s those produced or provided by a specific person or enterprise.
• Trademarks may be one or a combination or words, letters, and numerals; may consist of drawings, symbols, 3-dimensional signs such as the shape and packaging of goods, audible signs such as music or vocal sounds, fragrances or colours used as distinguishing features
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Right
• Law gives exclusive right to the owner to use it or authorise its use by others
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Trade Mark Law
• The Trade Marks Act, 1999• Term of protection: 10 years renewable
indefinitely
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Geographical Indications (GIs)
• Indications of natural, agricultural or manufactured goods from a particular area which have certain quality or reputation or other characteristic which can essentially be attributable to their geographical origin.
• Eg. Darjeeling Tea, Alphonso mango
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GI Law
• The Geographical Indications of goods (Registration and Protection) Act, 1999.
• Term of Protection: 10 years renewable ad nauseum.
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The Semiconductor Integrated Circuits Layout-Design
• “Layout-design” means a layout of transistors, and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit.
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Law
• The Semi-conductor Integrated Circuits Lay-out Design Act, 2000.
• Term of protection: 10 years.
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THE PROTECTION OF PLANT VARITIES AND FARMERS’ RIGHTS 1
• Registrable varieties and criteria:New Varieties
Novelty, Distinctiveness, uniformity and stability
Extant varietiesDistinctiveness, uniformity and stability
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THE PROTECTION OF PLANT VARITIES AND FARMERS’ RIGHTS 2
• Persons who can RegisterBreeders, farmers, universities, agricultural
institutes
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THE PROTECTION OF PLANT VARITIES AND FARMERS’ RIGHTS 3
• Right• Exclusive right to produce, sell, market,
distribute import or export the variety
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THE PROTECTION OF PLANT VARITIES AND FARMERS’ RIGHTS 4
• Law• The Protection of Plant Varieties and
Farmers’ Rights Act, 2001• Period of protection
15 years for annual crops18 years for trees and vines
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Trade Secret
• "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.(UTSA of US)
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When Trade Secrets are preferred?
• When invention is not patentable • When longer period of protection is
desired – Patent protection is limited to 20 years,
when secret can be kept beyond that period
• When cost of patent protection are prohibitive
• When it is difficult to reverse engineer.
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Transfer of Technology
• Assignment of technological intellectual property, developed and generated in one place to another through legal means such as technology licensing or franchising
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TRIPS and Technology Transfer
• Art. 7: IPRs should contribute to the transfer and dissemination of technology
• Art. 8: Measures be taken to prevent abuse of IPRs including practices that adversely affect the international transfer of technology
• Art. 40: Provisions to prevent anticompetitive practices in contractual licences
• Art 66.2: Obligations of developed countries to provide incentives to their enterprises to promote technology transfer to LDCs.
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Changing Profile of IP Owners
• Individual Innovators vs. Corporate Technology Owners
• Corporatization of IPRs
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Technology Transfer: An Investment
• Transfer of Technology an Investment Decision
• Investors– Are Guided by economic rationale of Maximum
Returns– Do not want expropriation of the technology– Will try to prevent competition.
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Accessing Technology• Technology available free on Internet but very
few firms take them up for fear of competitors also doing so
• Sometimes low level of IP protection is used by governments when domestic firms are not compete with large TNCs– They use reverse engineering to produce the new
products– Eg. Pharmaceutical industry of India between 1970
and 2005.• Post TRIPS this is not possible
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Role of IPRs in Technology Transfer
• IPRs are Critical for Investors• Guarantee against Misappropriation– A US survey of 1988 showed 42 % firms (high
technology) considered patents very important and 27 % moderately important in technology transfer.
• Easiness in transfer of technology because of legal certainty
• Other Factors like general economic environment, capacity of domestic firms to absorb technology, market conditions also important.
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