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/
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