Intellectual Property and Intellectual Property Rights

 Intellectual Property

Intellectual property or IP refers to creations of the mind, includes intangible creations of the human intellect, such as inventions, literary and artistic works and symbols, names and images used in commerce, etc.  There are many types of intellectual property and depends on the country.  The most commonly recognized types are copyrights, patents, trademarks, and trade secrets.

In broad terms, Intellectual property is divided into two categories, Industrial Property and Copy rights.

Industrial Property includes patents for inventions, trademarks, industrial designs and geographical indications.

Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design.

Intellectual property rights allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation.  Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.

Different Types of IP Protection for Businesses are Patents, Trade secrets, Trademarks, industrial design, geographical indications, Copy rights, etc.

A patent is an exclusive right granted for an invention – a product or process that provides a new way of doing something, or that offers a new technical solution to a problem. A patent provides patent owners with protection for their inventions. Protection is granted for a limited period, generally 20 years.  Patents provide incentives to individuals in recognition to their creativity and these incentives encourage innovation, which in turn enhances the quality of human life.

Patents are granted by national patent offices or by regional offices that carry out examination work for a group of countries - for example, the European Patent Office (EPO) and the African Intellectual Property Organization (OAPI).

There are 3 types of patents: utility, design and plant. A utility patent is the most common type, and it covers any process, machine, article of manufacture, or composition of matter, or any new and useful improvements thereof. To qualify for a utility patent, the invention must be novel, non-obvious, and have some usefulness.  A design patent covers any new, original, and ornamental design for an article of manufacture, while a plant patent covers any new variety of asexually-produced plant. A design patent lasts 14 years, and a utility or plant patent lasts 20 years.

A trade secret is a formula, process, device, or other business information that companies keep secret to give them an advantage over their competitors.

Examples of trade secrets are: soda formulas, customer lists, survey results, and computer algorithms.

A trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company.  The system helps consumers to identify and purchase a product or service based on whether its specific characteristics and quality – as indicated by its unique trademark – meet their needs.  Trademark protection ensures that the owners of marks have the exclusive right to use them to identify goods or services.

An industrial design is the ornamental or aesthetic aspects of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or two-dimensional features, such as patterns, lines or color.  Industrial designs are applied to a wide variety of industrial products and handicrafts: from technical and medical instruments to watches, jewelry and other luxury items; from house wares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.

A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to that place of origin. Most commonly, a geographical indication consists of the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local geographical factors, such as climate and soil.

Geographical indications may be used for a wide variety of agricultural products, such as, for example, “Tuscany” for olive oil produced in a specific area of Italy, or “Roquefort” for cheese produced in that region of France.

Copyright laws grant authors, artists and other creators protection for their literary and artistic creations.  Works covered by copyright include, but are not limited to: novels, poems, plays, reference works, newspapers, advertisements, computer programs, databases, films, musical compositions, choreography, paintings, drawings, photographs, sculpture, architecture, maps and technical drawings.

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 Importance of Intellectual Property Rights

• Intellectual property contributes to national and state economies. Industries rely on the adequate enforcement of patents, trademarks, and copyrights and consumers ensure the purchase of safe, guaranteed products. Without protection of ideas, businesses and individuals would not receive full benefits of their inventions and therefore may focus less on research and development.  
• Intellectual property creates and supports jobs.  IP-intensive industries employ over hundreds of millions of people worldwide.
• Intellectual property drives economic growth and competitiveness
• Intellectual property rights protect consumers and families
• Intellectual property helps generate solutions to global challenges in improving people’s lives around the globe through r&d intensive pharmaceutical industries, agricultural companies, discoveries in alternative energy and green technologies
• Intellectual property rights encourage innovations and reward entrepreneurs
• IP rights facilitate the free flow of information by sharing the original and patented invention and leads to new innovations and improvements on existing ones.
• IP rights are incorporated by all sectors of industry—small, medium and large companies alike—and by labor organizations, consumer groups, trade associations, etc.

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World Trade Organization (WTO) and TRIPS

The World Trade Organization is an intergovernmental organization concerned with the regulation of international trade between nations. It was officially commenced on 1 January 1995 under the Marrakesh Agreement. This agreement signed by 123 nations on 15 April 1994, replaced the General Agreement on Tariffs and Trade (GATT) which was commenced in 1948. WTO is the largest international economic organization in the world.  Now, The WTO has 164 members and 24 observer governments.

The highest authority of the WTO is the Ministerial Conference, which meet at least every two years. There are three bodies - The General Council, The Dispute Settlement Body and The Trade Policy Review Body. 

Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It gives the minimum standards for the regulation of many forms of intellectual property (IP) by national governments. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990 and is administered by the WTO.  The TRIPS Agreement came into effect on 1 January 1995. It is the most comprehensive multilateral agreement on intellectual property, to date.

As per TRIPS, the WTO members should provide copyright rights, geographical indications, industrial designs, integrated circuit layout-designs, patents, new plant varieties, trademarks, trade names and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures in case of disputes.  Substantive standards of protection are laid down in Copyright, copyright related rights, trademarks, geographical indications, Industrial designs, patents, Layout-designs of integrated circuits, Protection of undisclosed information (trade secrets or know-how) and Control of anti-competitive practices in contractual licences

The three main features of the Agreement are:

1. Standards. The Agreement sets out the minimum standards of protection to be provided by each Member, regarding the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights and the minimum duration of protection.

2. Enforcement. The Agreement lays down general principles for all IPR enforcement procedures and remedies for the enforcement of intellectual property rights.

3. Dispute settlement. As per the agreement, the disputes between WTO Members regarding the TRIPS obligations are subject to the WTO's dispute settlement procedures.

World Intellectual Property Organization (WIPO)

Established in 1970, the World Intellectual Property Organization (WIPO) is an international organization dedicated to helping ensure that the rights of creators and owners of intellectual property are protected worldwide, and that inventors and authors are therefore recognized and rewarded for their ingenuity.

As part of the United Nations system of specialized agencies, WIPO serves as a forum for its Member States to establish and harmonize rules and practices for the protection of intellectual property rights. WIPO also services global registration systems for trademarks, industrial designs and appellations of origin, and a global filing system for patents. These systems are under regular review by WIPO’s Member States and other stakeholders to determine how they can be improved to better serve the needs of users and potential users.

WIPO is a largely self-financed organization, generating more than 90 percent of its annual budget through its widely used international registration and filing systems, as well as through its publications and arbitration and mediation services. The remaining funds come from contributions by Member States.

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Patents

The word patent originates from the Latin patere, that means "to lay open" meaning ‘to make available for public inspection’.

A patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from making, selling or using the invention for a period of time. The patent system is designed to encourage inventions that are unique and useful to society.

There are three different kinds of patents: utility patents, design patents and plant patents.

·         Utility Patents: This is the most common type of patent and are granted to new machines, chemicals, and processes.

·         Design Patents: This is granted to protect the unique appearance or design of manufactured objects, such as the surface ornamentation or overall design of the object.

·         Plant Patents: Granted for the invention and asexual reproduction (by means other than from seeds, such as by grafting or rooting of cuttings) of new and distinct plant varieties, including hybrids.

Patentables and non-patentables

For an invention to be patented, it must be novel and non-obvious and useful.

An invention is novel if it is different from other similar inventions in one or more of its parts. It also must not have been publicly used, sold, or patented by another inventor within a year of the date the patent application was filed.

An invention is non-obvious if the invention an unexpected or surprising development.

The invention must have some beneficial use and must be operable. A machine that will not operate to perform its intended purpose would not be called useful, and therefore would not be granted a patent. A useful invention may qualify for a utility patent only if it falls into one of five categories: a process, a machine, a manufacture, a composition of matter, or an improvement of one of these.

Patentable Items include practically everything made by humans and the processes for making the products. Examples are

·         Computer software and hardware

·         Chemical formulas and processes

·         Genetically engineered bacteria, plants, and animals

·         Drugs

·         Medical devices

·         Furniture design

·         Jewelry

·         Fabrics and fabric design

·         Musical instruments

Non –patentables

·         Naturally occurring substances and laws of nature, even if they are newly discovered, cannot be patented.

·         Abstract principles, fundamental truths, calculation methods, and mathematical formulas are not patentable. However, a process that uses such a formula or method can be patented.

·         A patent cannot be obtained for a mere idea or suggestion. The inventor must have figured out the concrete means of implementing his or her ideas in order to get a patent.

·         A patent also will not be granted for an invention with no legal purpose or for an unsafe drug.

Applying for Patent Protection

A copyright is automatically created, but a patent does not arise automatically.  The inventor must apply for a patent.

A patent is requested by filing a written application at the patent office. The applicant may be the inventor or its assignee. The application contains a description of how to make and use the invention that must provide sufficient detail for a person skilled in the art or in the relevant area of technology to make and use the invention. Drawings illustrating the invention may also be provided.

Once filed, patent examiner reviews the patent application to determine if it meets the patentability requirements of that country. If the patent is rejected, a final rejection is sent by the patent office, or if the patent application is granted, a payment of additional fees is to be done for enforcing the patent.

The procedure for granting patents, requirements placed on the patentee, and the extent of the rights vary between countries according to national laws and international agreements. In US, Utility and plant patents last for 20 years from the application date; design patents last for fourteen years. After patent expiry, the invention becomes a public property and can be used or sold by anyone.

Patent Infringement is when the inventor thinks someone has used his or her patented invention without permission.  Then the inventor can bring a lawsuit against the infringer.

Patent law in India

The history of Patent law in India starts from 1911 with the Indian Patents and Designs Act, 1911. The Patents Act, 1970 came into force in the year 1972 by amending and consolidating the existing Patents law in India. The Patents Act, 1970 was again amended by the Patents (Amendment) Act, 2005, wherein product patent was extended to all fields of technology including food, drugs, chemicals and micro-organisms.  The term of every patent in India is 20 years from the date of filing the patent application

An invention relating to a product or a process that is new, involving inventive step and capable of industrial application can be patented in India. However, it must not fall into the category of inventions that are non-patentable as provided under sections 3 and 4 of the (Indian) Patents Act, 1970.

Section 3 in The Patents Act, 1970

What are not inventions. -The following are not inventions within the meaning of this Act, -

(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws

(b) an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment

(c) the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature

(d) 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. Explanation. -For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy

(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance

(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way

(h) a method of agriculture or horticulture;

(i) any process for the medicinal, surgical, curative, prophylactic [diagnostic, therapeutic] or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.

(j) plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals

(k) a mathematical or business method or a computer programe per se or algorithms

(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions

(m) a mere scheme or rule or method of performing mental act or method of playing game

(n) a presentation of information

(o) topography of integrated circuits

(p) an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.

Section 4 in The Patents Act, 1970

Inventions relating to atomic energy not patentable. -No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of section 20 of the Atomic Energy Act, 1962 (33 of 1962).

References

http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf

https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

https://smallbusiness.findlaw.com/intellectual-property/what-is-a-patent.html

https://indiankanoon.org/doc/891560/

https://indiankanoon.org/doc/874310/