intellectual property rights in india : an overview

Academic Associate – IIM Academic Associate – IIM AhmedabadAhmedabad

KALPESHKUMAR L. KALPESHKUMAR L. GUPTAGUPTA

LL.M., MBL (NLSIU), M.Phil. (Law), LL.M., MBL (NLSIU), M.Phil. (Law), PGDMPGDM

Society for Research and Initiative for Society for Research and Initiative for Sustainable Technologies and Institutions Sustainable Technologies and Institutions

(SRISTI)(SRISTI)

at

(C) K L GUPTA(C) K L GUPTA

Outline of the presentation :-

1. Introduction2.Branches of IPR3.Recent Issues in IPR4.Video on IPR5.Q & A


What is Intellectual Property ?

IPR are the legally recognized exclusive rights to creation of the mind.

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

It’s an intangible asset


1.Company Value2.Entry Barriers3.Legal Monopoly4.Avoid freeriding5.Avoid Infringement6.Financial leveraging7.Advance of man kind8.Goodwill9.Counterfeiting10.Works or Art

Why do you need to protect your intellectual property*

*Source :- http://www.jarryip.com/blog/bid/273971/Why-do-you-need-to-protect-your-Intellectual-Property


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

- TRIPS is an international agreement administered by World Trade Organization (WTO)

- Negotiated at the end of the Uruguay Round of the General Agreement of Tariffs and Trade (GATT) in 1994

- 158 Countries member


Branches of Intellectual Property :-


Copyrights works under Ministry of Human Resource Development, Govt. of India

Protection of Plant Varieties & Farmer’s Rights Authority works under Ministry of Agriculture, Govt. of India


Patents (The Patents Act, 1970) :-

For granting patent following conditions are essential :-

-Novelty-Non-obviousness-Utility-Enablement

Prior Art, Public Domain, Public Use :-

……...Prior art something which is already known to mankind. Anything which is already known in general or to specific group of person, whether in the same country of abroad, cannot be patented


Patents Application :-

- First inventor/Assignee/Legal Representative can file application

- Provisional Specification to be attached with application, a complete specification shall be filed within twelve months from the date of filing of the application.

- Controller may ask for further details

- Patent will be granted after complying all requirement

- Term is 20 years from filing of patent application

- Addition can be done in existing patent

- Compulsory licences (Section 84) after 3 years of granting patent (See Section 92A also)

- Govt. power to use innovation for purpose of govt.(Sec. 100)


Patents Co-operation Treaty :-

- The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in June 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.

- Total 148 parties of PCT


Apple Inc. v/s. Samsung Electronics Co. Ltd.

- Dispute regarding design of smart phone and tablet computers (Year 2011)

- By October 2011, Litigations in 10 countries

- Apple won in US and lost in South Korea, Japan, UK, Germany, Australia


Novartis AG v/s. Union of India & Others (Supreme Court, Decided in April 2013)

The judgment allows suppliers to continue making generic copies of Swiss firm Novartis’ Glivec or Gleevec (brand name of Imatinib), which has been shown to fight chronic blood cancer effectively.

While the Novartis drug costs more than Rs 1 lakh per month, with doctors often advising patients to take it lifelong, the generic equivalents cost less than one-tenth.

For incremental change patent can not be given. A patent can not be granted for substantial improvement

The ruling would be a relief to some 300,000 patients in India currently taking the drug.


Copyrights (Copyright Act, 1957) :-

Copyright can be given for followings

…………Copyright is not given to idea but to expression of idea

1.Original literary, dramatic, musical or artistic work;2.A cinematograph film3.A sound recording

Application to be made to Registrar of Copyrights at New Delhi

Term of copyright is 60 years from the beginning of the calendar year next following the year in which the author dies. In co-author death of last author. For other it is also 60 years.

Compulsory License can be given under Section 31


Some leading cases :-

- Harry Potter (Delhi High Court, 2010)Various rights on Harry Potter theme

- Adobe & Microsoft (Delhi High Court, 2009)Pirated software case

- Indian Music Industry casesMusic copied from foreign and Indian sources.


Trademarks (Trade Mark Act, 1999) :-

“Trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging andcombination of colours.

…This may include shape, packaging and colour combinations. This mark may be a logo, symbol, brand, heading, label, name, signature, word, letter.

“Well-known mark” is not registered but being used for long time and established itself as a strong brand. Protection is also available in Trade Mark law.

Valid for 10 years can be renewed.


Some landmark cases :-

- Benz v/s. VIP Undergarments (Delhi High Court, 1993)

VIP undergarments began selling an underwear with the name ‘VIP-Benz’

- Havmour Ice Cream Case, Ahmedabad.. In Hyderabad infringement done

- Cadila v/s. Amul (Delhi High Court, 2007).. Sugar Free case..

- Satyam Infoway v/s. Siffyney Solutions (SCI, 2004) Domain Name Case… Passing of Case


Designs (Design Act, 2000) :-

A Design appeals solely to the eye. The eye must be the eye of the customer on a visual test.. There should not be any functional consideration.

10 years validity registration. Can be renewed for second period of 5 years.

Tetrapack (Founded in 1951 in Sweden)


Some Leading cases :-

Veet’s S – Shaped Spatula..

..…Reckitt Benckiser launched Veet hair removal system in India 2004. Veet came up with a large S-Shaped spatula which was known as ‘perfect touch’ spatula. It obtained Design Regi. in December 2003.

…Wyeth, which sells ‘Anne French’, another hair removal product offered a similar spatuala accordin to Reckitt Benckiser..

Wyeth spatula was already registered in several foreign countries.

Wyeth succeeded


Geographical Indication (Geographical Indication of Goods (Registration & Protection) Act, 1999)

“geographical indication”, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods

as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and

in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be

Validity for 10 years and can be renewed also


Registered Gis :-

- Darjeeling Tea (First Regi GI in India)(Himachal Pradesh)

- Mysore Silk (Karnataka)- Kutchh Embrodery (Gujarat)- Feni (Goa)- Bikaneri Bhujia (Rajashthan)- Tirupati Laddu (Andhra Pradesh)- Nagpur Orange (Maharashtra)- Scotch Whisky (United Kingdom)- Porto, Douro (Portugal) etc..

As on September 2013, Total 215 GIs have been registered


Traditional Knowledge :-

Traditional Knowledge is passed on from one generation to the next, mostly in oral form and sometimes in writing. The knowledge comprises innovations, information, practices, customs, traditions etc. The knowledge may be with regard to the use of natural resources, environment, plants and animals, curing diseases or nature in general. Most of knowledge is undocumented.


-Basmati Rice-Neem.. Controlling fungi in palnts by using neem oil-Turmeric for healthy wounds.

….. In USA patent granted. India succeed stating it was prior knowledge in India


Trade Secret/Confidential information :-

Three essential elements

-The subject matter must be a secret capable of adding economic value

-The owner must take reasonable precautions to keep it a secret. The purpose is to ensure that no one claims protections for something which was flowing freely to competitors.

-In cases of breach, the owner must prove that the competitor got the information in a wrongful manner


Diljeet Titus case.. Delhi based lawyer and his associates case.


The Protection of Plant Varieties and Farmer’s Rights Act, 2001

Importance of Plant Variety

The breeding activities and exploitation of new varieties are the decisive factors for improving rural income and their overall economic development. Since the process of plant breeding is long and expensive, it is important to provide an effective system of plant variety protection with an aim to encourage the development of new varieties of plants for the benefit of society.

What are Farmers’ rights?

Farmer who has bred or developed a new variety shall be entitled for registration and other protection under PPV&FR Act, 2001 in the same manner as a breeder of a variety.

Cont..


Cont..

Duration of protection of a registered plant variety.

The duration of protection of registered varieties is different for different crops which are as below:

1.For trees and vines - 18 years.

2. For other crops - 15 years.

3. For extant varieties - 15 years from the date of notification of that variety by the Central Government under section 5 of the Seeds Act, 1966.


Some Latest Issues in IPR :-

Cyber Squatting (Domain Squatting) :-

……using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.


Some important websites :-

http://www.ipindia.nic.in/

http://copyright.gov.in/

http://www.plantauthority.gov.in/

https://www.icann.org/

http://www.wipo.int/portal/en/index.html

http://www.ipindia.nic.in/

http://copyright.gov.in/

http://www.plantauthority.gov.in/

https://www.icann.org/

http://www.wipo.int/portal/en/index.html


Kalpeshkumar L [email protected]