Intellectual Property Rights (IPR) Study Material PDF

UNIT V INTELLECTUAL PROPERTY RIGHTS Intelligent Property Rights (IPR): Introduction, meaning of intellectual property, main forms of IPR, Copyright, Trademarks, Patents and Designs, Secrets. Law relating to Copyright in India; Law relating to Trademarks under...

UNIT V INTELLECTUAL PROPERTY RIGHTS Intelligent Property Rights (IPR): Introduction, meaning of intellectual property, main forms of IPR, Copyright, Trademarks, Patents and Designs, Secrets. Law relating to Copyright in India; Law relating to Trademarks under Trademark Act, 1999 - Law relating to Patents under Patents Act, 1970, Process of obtaining patent – application, examination, opposition and sealing of patents, Rights and obligations of patentee. 1. Intellectual Property Rights (IPR) Intellectual Property Rights (IPR) refer to the legal protections granted to the creators or owners of intellectual property, which encompasses a wide range of creations of the mind. These rights allow creators or owners to control and benefit from their inventions, artistic works, designs, symbols, names, and images used in commerce. The primary objective of IPR is to encourage innovation and creativity by providing creators with a temporary monopoly over their creations, enabling them to reap financial benefits and recognition for their work. Meaning of Intellectual Property Intellectual Property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce. Unlike physical property, intellectual property is intangible, meaning it cannot be physically touched but represents valuable ideas, processes, and expressions that contribute to economic and cultural growth. Intellectual Property Rights (IPR) in India are governed by a robust legal framework that aligns with international standards, particularly the agreements under the World Trade Organization (WTO), such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Indian government has taken significant steps to modernize its IPR regime to encourage innovation, protect creators' rights, and promote economic growth. Key Forms of IPR in India 1. Patents A patent is a legal right granted for an invention, which is a product or process that provides a new way of doing something or offers a new technical solution to a problem. Legislation: The Patents Act, 1970 (amended in 2005). Key Provisions: o Protects inventions that are novel, involve an inventive step, and are capable of industrial application.  o Excludes certain categories from patentability, such as mathematical methods, business methods, and medical procedures. o The term of a patent is 20 years from the date of filing. Administration: Managed by the Office of the Controller General of Patents, Designs, and Trademarks (CGPDTM), under the Department for Promotion of Industry and Internal Trade (DPIIT). 2. Copyright Copyright protects the rights of creators over their literary and artistic works. This includes books, music, paintings, films, software, and databases. Legislation: The Copyright Act, 1957 (amended in 2012). Key Provisions: o Protects original literary, dramatic, musical, and artistic works, as well as cinematographic films and sound recordings. o Moral rights are also recognized, ensuring the creator’s right to attribution and integrity of the work. o Duration of copyright typically lasts for the lifetime of the author plus 60 years after their death. Administration: Managed by the Copyright Office under the Ministry of Education. 3. Trademarks A trademark is a distinctive sign, symbol, word, or phrase used to identify goods or services as originating from a particular source and to distinguish them from those of others. Legislation: The Trademarks Act, 1999. Key Provisions: o Protects distinctive signs, symbols, logos, and brand names that distinguish goods or services of one entity from those of others. o Registration is valid for 10 years and can be renewed indefinitely. o Recognizes well-known trademarks, providing them protection even without registration in India. Administration: Managed by the Trademarks Registry under the CGPDTM. 4. Designs (Industrial Designs) Design protection covers the aesthetic aspect of an object, such as its shape, pattern, or colour, which gives it a unique appearance. Legislation: The Designs Act, 2000. Key Provisions: o Protects the aesthetic aspects of an article, such as its shape, configuration, pattern, or ornamentation. o Registration provides exclusive rights for 10 years, extendable by an additional 5 years. Administration: Managed by the Designs Wing under the CGPDTM. 5. Geographical Indications (GIs) A Geographical Indication (GI) is a sign used on products that have a specific geographical origin and possess qualities, reputation, or characteristics inherent to that location.  Legislation: The Geographical Indications of Goods (Registration and Protection) Act, 1999. Key Provisions: o Protects products that have a specific geographical origin and possess qualities, reputation, or characteristics inherent to that location. o GIs are registered for an initial period of 10 years, with the possibility of indefinite renewals. Administration: Managed by the Geographical Indications Registry under the CGPDTM. Examples: Darjeeling Tea, Pashmina, Kanchipuram Silk, etc. 6. Trade Secrets Trade secrets encompass confidential business information, such as formulas, practices, designs, processes, or any other information that provides a competitive advantage. Legislation: India does not have a specific law for trade secrets; however, protection is provided under contract law, principles of equity, and common law. Key Provisions: o Protection is generally sought through confidentiality agreements, non-disclosure agreements (NDAs), and other contractual arrangements. o Remedies for breach include damages, and account of profits. 7. Plant Variety Protection and Farmers' Rights Legislation: The Protection of Plant Varieties and Farmers' Rights (PPVFR) Act, 2001. Key Provisions: o Protects new, distinct, uniform, and stable plant varieties. o Farmers’ rights include the right to save, use, sow, re-sow, exchange, share, or sell farm produce, including seeds of a protected variety, except branded seeds. Administration: Managed by the Protection of Plant Varieties and Farmers' Rights Authority under the Ministry of Agriculture.  Patent Filing Obtaining a patent involves a structured process that includes filing an application, examination, addressing opposition (if any), and finally, the sealing of the patent. 1. Filing a Patent Application The first step in obtaining a patent is filing an application with the appropriate patent office. In India, the office is the Indian Patent Office (IPO), which has branches in Delhi, Mumbai, Chennai, and Kolkata. Steps involved in filing: Determine Patentability: Before filing, it's crucial to ensure that the invention is patentable. This means it must be novel, involve an inventive step (non-obviousness), and be capable of industrial application. Additionally, it should not fall under the non-patentable categories listed in the Patents Act, 1970. Eg. Inventions that could harm public order, morality, or human, animal, or plant life or health, or are likely to cause serious prejudice to the environment, are non-patentable. For instance, a method for cloning humans or a process for modifying the germline of humans may fall under this category.  Draft the Patent Application: This involves preparing the necessary documents, including: o Form 1: Application for grant of a patent. o Form 2: Provisional or complete specification. A provisional specification can be filed if the invention is still in development, giving the applicant 12 months to file the complete specification. o Form 3: Statement and undertaking regarding foreign applications. o Form 5: Declaration of inventorship. o Form 9: Request for early publication (optional). o Form 18: Request for examination (this can be filed at the time of application or later). Types of Applications: o Provisional Application: Filed when the invention is in the early stage of development. This establishes an early filing date. o Complete Specification: Provides full details of the invention and the best method of performing it. Pay the Filing Fee: The fee depends on the type of applicant (individual, small entity, or large entity) and the type of application. 2. Publication of the Application After filing, the patent application is published in the Official Patent Journal 18 months from the filing date or priority date, whichever is earlier. Request for Early Publication: The applicant can request early publication (before the 18-month period) by filing Form 9. Upon acceptance, the application is published within one month. Once published, the application becomes public, allowing anyone to view the details of the invention. 3. Examination of the Patent Application Request for Examination (RFE): To initiate the examination process, the applicant must file a Request for Examination (Form 18) within 48 months from the priority date or filing date, whichever is earlier. Examination Process: o First Examination Report (FER): After the RFE is filed, the application is queued for examination. The Patent Examiner conducts a thorough examination and issues the First Examination Report (FER), which contains any objections or requirements. o Response to FER: The applicant must respond to the FER within six months (extendable by three months) by addressing the examiner's objections, amending the claims, or providing clarifications. o Hearing: If the examiner is not satisfied with the response, a hearing may be scheduled where the applicant can further defend the patent application.  o Grant or Refusal: If the examiner's objections are resolved, the patent is granted. If not, the application may be refused. 4. Opposition to Grant of Patent There are two types of opposition procedures in the Indian patent system: Pre-Grant Opposition (Section 25(1)): o When: Can be filed after publication of the application and before the grant of the patent. o Who: Any person or entity can file a pre-grant opposition. o Grounds: The opposition can be based on several grounds, including lack of novelty, lack of inventive step, non-patentable subject matter, prior public use, and more. o Procedure: The opponent files the opposition with supporting evidence. The applicant is given an opportunity to respond. The Controller of Patents then decides whether to proceed with the grant of the patent or to reject the application based on the opposition. Post-Grant Opposition (Section 25(2)): o When: Can be filed within 12 months after the grant of the patent. o Who: Only a person interested (an entity with a commercial interest in the invention) can file a post-grant opposition. o Grounds: Similar to pre-grant opposition, with additional grounds such as non-disclosure of information, incorrect mention of inventorship, and others. o Procedure: The opposition is heard by an Opposition Board, which provides a recommendation to the Controller. The Controller then makes the final decision to maintain or revoke the patent. 5. Sealing of Patent and Grant Grant of Patent: If no opposition is filed or if the opposition is resolved in favour of the applicant, the patent is granted and the patent certificate is issued. Sealing of Patent: The grant of the patent is recorded in the Register of Patents, and the details are published in the Official Patent Journal. This is known as the "sealing" of the patent. Term of the Patent: The patent is granted for a term of 20 years from the date of filing of the application. 6. Post-Grant Requirements Annuity Payments: To maintain the patent, annuity or renewal fees must be paid every year, starting from the third year. If the fees are not paid, the patent can lapse. Working of Patents: The patentee is required to file a statement of the working of the patent (Form 27) annually, indicating whether the patent has been worked (used or exploited) in India.